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1 

2 

3 

1 

2 

3 

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'p 


DRINKS,  DRINKERS  AND  DRINKING, 


OR 


THE  LAW  AND  HISTORY 


or 


Intoxicating  LiguoRS 


BV 


R.  VASHON  ROGERS,  Jr., 

O^  OSGOODE  HALL,  BARKISTEK-AT-LAW. 


fl 


ALBANY: 

WEED,  PARSONS   AND  COMPANY. 

1881. 


Entered,  according  to  Act  of  Consress,  in  tlie  year  eigliteen 
hundred  and  eighty-one, 

Bv  JOHN  D.  PARSONS,  JR., 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


CENTRE  OF  CRIMINOLOGY 
LIBRARY 


WEED,   PARSONS  AND  COMPANY, 
PRINTERS     AND     E L ECT R OT Y P K RS , 
ALBANY,  N.  Y. 


PREFACE. 


Tub  ohject  of  a  preface  is  three-fold  —  to  ex- 
plain the  reason  why  of  the  book,  to  thank  those 
who  have  assisted  the  author  in  his  production, 
and  to  deprecate  criticism.  The  more  briefly  this 
is  done  the  better. 

The  subject  of  intemperance  is  one  perpetually 
forcing  itself  upon  every  one  who  either  acts  or 
thinks  or  sees.  Each  year  it  becomes  more  im- 
portant. The  author  knows  of  no  book  occupy- 
ing the  ground  attempted  to  be  covered  by  the 
following  pages,  and  he  thinks  sucli  a  work  is  re- 
quired to  fill  a  gap  in  every  library.  How  far 
he  has  succeeded  in  writing  M'hat  the  titles  of  the 
chapters  show  was  intended,  and  what  will  be 
useful  to  the  professional  man  as  well  as  inter- 
esting to  the  general  reader,  is  for  others  to  say. 


■■■■j 


iv  Preface. 

The  assistants  in  tliis  book  have  been  the 
authors  and  judges  whose  writings  have  been 
quoted,  and  to  tlieni  due  acknowledgment  has 
been  given  where  their  words  have  been  cited. 

The  author  is  only  too  conscious  of  his  short- 
comings. The  subject  has  proved  far  more  ex- 
tensive than  he  at  first  anticipated,  and  lie  fears 
that  his  provincial  home  has  not  been  the  best 
place  wherein  to  write  a  booklet  for  use  in  the 
United  States.  Having,  however,  dared  to  trouble 
the  public  with  his  work  lie  will  try  calmly  to 
submit  to  the  consequences,  and  take  whatever 
the  critics  in  their  wisdom  give. 

R.  V.  R.,  Jr. 
Kingston,  Ont.,  August,  1881. 


THE  HISTORY  AND  LAWS 


OF 


INTOXICATING   LIQUORS. 


CHAPTER- 1. 
INTOXICANTS. 


The  fruit  of  the  vine  seems  to  have  been  used 
for  the  manufacture  of  drinks  from  the  earliest 
ages.  Some  have  even  hazarded  the  opinion  that 
the  juices  <  f  the  forbidden  fruit  were  of  an  al- 
coholic qualit}',  and  ancient  traditions  attribute 
to  the  eating  of  the  fatal  tree  of  knowledge 
effects  similar  to  those  of  intoxicating  liquors. 
Milton  represents  Eve,  on  "tasting  those  fair  ap- 
ples," as  becoming  the  subject  of  unnatural  appe- 
tite and  exhilaration : 

Greedily  she  engorged  without  restraint 
And  knew  not  eating  death  :  satiate  at  length 
And  heighten'd  as  with  wine,  jocund  and  boon. 

She  thus  describes  her  feelings  to  Adam, 

Opefier  naine  eyes, 
Dim  erst,  dilated  spirits,  ampler  heart. 
And  growing  up  to  godhead. 
1 


2 


Intoxicants. 


So  slie  felt,  yet  tlie  ^reat  poet  exposes  the  de- 
lusion bv  a  word, 

But  in  her  cheek  distemper  flushing  glowed. 

Then  the  unliappj  pair  sin  togetiier,  and 

As  with  new  wine  intoxicated  both, 

They  swim  in  mirth,  and  fancy  that  they  feel 

Divinity  within  them,  breeding  wings 

Wherewith  to  scorn  the  earth  ;  but  that  false  fruit 

Far  other  operation  first  displayed, 

Carnal  desire  inflaming. 

Then  came  the  usual  revulsion  and  shame.' 

« 

Whether  alcohol  was  the  forbidden  fruit  or 
not,  it  would  appear  highly  probable  that  the  old 
antediluvians  had  knowledge  of  the  vine,  ex- 
pressed its  juice  and  may  have  often  allowed  it 
to  fer  lent  before  quaffing  it.  hi  the  "  World 
before  the  Flood  "  the  wife  of  Enoch  is  made  to 
walk 

'midst  fruits  and  flowers, 
Plucking  the  purple  clusters  from  the  vine 
To  crown  the  cup  of  unfermented  wine. 

And — to  pass  from  fancy  to  fact  —  among  the 
remains  of  those  singular  aquatic  races  who  built 
their  houses  over  the  lakes  of  Europe,  from  three 
to  seven  thousand  years  ago,  are  found  proofs 
abundant  that  they  possessed  and  enjoyed  the 
grape." 

'  Lees'  Temperance  Bible  Commentary,  7. 
"  Keller's  Lake  Dwellers,  pp.  61,  363. 


Intoxicants. 


8 


"We  are  told  in  sacred  liistory  that  almost  as 
soon  as  the  subsided  ^vaters  of  the  Flood  hud  al- 
lowed the  earth  to  put  forth  and  bud,  the  wine 
of  Noah's  vineyard  was  both  used  and  abused  ; 
the  patriarch  himself  drank  too  deeply  of  that 
pleasant  poison 

Which  since  has  overwhelmed  and  drowned 
Far  greater  numbers  on  dry  ground. 
Of  wretched  mankind,  one  by  one, 
Than  e'er  the  flood  before  had  done. 

Soon  the  use  of  the  grape  spread  in  all  direc- 
tions. The  Scriptures  contain  many  proofs  of 
the  excessive  use  of  wine  among  the  chosen  peo- 
ple. Different  words  are  used  in  different  pass- 
ages in  Holy  Writ ;  one,  T'trosh^  which  is  gener- 
ally supposed  to  mean  "  must,"  or  the  unfer- 
mented  juice  of  the  grape  ;  another,  Yayin^  or 
wine ;  and  the  third  Shehat\  or  strong  drink  otlier 
than  wine.' 

Herodotus  tells  us  that  Cyrus,  the  Persian,  on 
one  occasion  entrapped  his  enemies  by  leaving  in 
their  way  "flowing  goblets  of  wine."  The 
hieroglyphics  and  pictures  found  upon  the  an- 
cient monuments  of  Eygpt  show  that  long  before 
the  Exodus  wine  was  consumed  in  that  country 
by  many  classes  of  society,  and  that  the  natives 
were  much  addicted  to  intemperance.  At  Thebes 
are  still  visible  representations  of  wune-presses ; 

'  Samuelson's  History  of  Drink,  ch.  5. 


4 


Intoxicants. 


in  otlier  places,  pictures  of  wino-drcssers,  men 
drawing  wine  from  vats,  servants  handing  cups 
to  guests,  slaves  carrying  their  masters  home 
drunk,  maids  tending  their  mistresses  when  over- 
come with  wine.'  Early  in  the  Christian  era 
Egyptian  wine  was  exported  to  Greece  and  Kome, 
and  highly  prized.  Athena3us  tells  us  that  the 
natives  eat  boiled  cabbages  for  a  first  course  at 
their  feasts  as  a  preventive  against  intoxication ; 
they  flavored  their  wine  with  resin  or  myri'h. 

Confucius  proves  that  long  before  his  day  — 
and  he  died  478  B.  C.  —  the  vine  was  known  in 
the  Flowery  Kingdom  ;  and  much  sage  advice  he 
gives  against  its  excessive  use.  In  Greece  the 
origin  of  wine  and  wine-bibbing  belongs  to  the 
mythical  age.  Dionysus,  alias  Bacchus,  we  are 
told,  discovered  the  use  of  that  liquid  which,  as 
Pliny  says,  "  deprives  a  man  of  his  reason,  and 
drives  him  to  frenzy  and  the  connnission  of  a 
thousand  crimes."  Blind  old  Homer  sings  of  it 
with  unctiousness  and  delight,  and  has  his  lieroes 
constantly  overcome  with  '^ruby  wine  and  ivy- 
wreathed  cups  of  black  wine,"  which  they  even 
carried  about  with  them  in  their  ships.  He  occa- 
sionally interjects  a  mild  word  of  advice  against 
excess,  as  to  Ulysses,  "  Sweet  wine  hurts  thee, 
it  harms  others  also,  whoever  drinks  it  too 
abimdantly."     Dr.  Schliemann's  relics  of  ancient 

'  Wilkinson's  Ancient  Egyptians,  vol.  I,  pp.  46,  53,  53. 


t  I 


Intoxicants.  6 

Troy  consist,  in  great  part,  of  drinking  vessels 
of  gold  and  of  silver  and  of  earthenware,  of 
every  size,  form  and  color  ;  showing  that  the  race 
that  used  them  were  highly  convivial  in  their 
habits.  At  one  time  the  Spartan^  were  total 
abstainers;  but  even  T,  ^cedemon  succumbed  to 
luxury  and  wine-drinking.  Temperance  and  sim- 
plicity of  life  did  not  long  hold  sway  in  Greece. 
Even  B.  C.  500  Panyasis,  Herodotus'  uncle,  sang 
bacchanalianly, 

Good  wine's  the  gift  which  god  has  given 
To  man  alone  beneath  the  heaven, 
Of  dance  and  song  the  genial  sire, 
Of  friendship  gay  and  soft  desire. 

Yet  even  that  poor  Grecian  knew  that  there 
was  a  thorn  to  the  rose,  for  he  adds,  as  with  a 
siirh,  it's  "  a  useful  slave  but  cruel  master."  '  The 
Greeks  watered  their  wine  extensively,  some- 
times even  putting  in  salt  water  for  the  sake  of 
the  flavor. 

Wine,  although  it  was  well  known  to  its  inhab- 
itants from  the  days  of  Romulus,  was  not  intro- 
duced into  general  use  in  Rome  until  six  hundred 
years  after  its  foundation.  After  this  it  became 
very  abundant.  Pliny  speaks  of  195  different 
kinds.  Its  abundance  is  shown  by  the  fact  that 
when  L.  Lucullus  returned  to  Rome  he  distrib- 
uted 100,000  gallons  among  the  people.     Hor- 

'  Samuelson's  History  of  Drink,  ch.  7. 


<<¥' 


6 


Intoxicants. 


tensins  (who  gave  up  drinking  wine  and  living, 
B.  C.  50)  left  10,000  casks  of  Chian  wine  to  his 
heirs.  The  price  of  wine  ranged  from  six  pence 
per  gallon  to  tliree  pence  for  ten  gallons.  Max- 
iniin,  the  Einperor,  often  drank  six  gallons  of 
wine  a  day,  and  without  getting  drunk.  Novel- 
liiis  Torquatus,  a  noble  who  tilled  the  highest 
offices  of  State,  could  toss  off  more  than  two  gal- 
lons at  a  single  draught.  After  reading  of  such 
men  all  modern  topers  appear  almost  like  total 
abstainers,  and  it  seems  by  no  means  strange  that 
Pliny  should  write  of  the  blotched  and  purple 
skin,  the  crimson  nose,  the  bleared  and  watery 
eyes  of  these  wine-drinkers,  and  of  their  sleep 
agitated  by  furies,  as  he  calls  delirium  tremens.  * 
The  Romans,  like  their  Grecian  neighbors,  mixed 
sea-water  with  their  wine  to  promote  digestion 
and  to  prevent  it  being  too  heady.  They  also 
added  turpentine,  resin,  gypsum,  almonds,  parched 
salt,  goat's  milk,  cedar  cones,  salts  of  lead  and  a 
variety  of  other  things,  which  seem  rather  unsuit- 
able, to  improve  and  give  flavor  to  their  wines." 
It  is  to  Christianity,  or  at  least  to  its  professors, 
that  the  credit  belongs  of  having  caused  tiie 
growth  of  the  grape  and  tlie  consumption  of  wine 
to  extend  to  Germany  and  the  neighboring  coun- 

'  History,  Book  IV,  ch.  28. 

'  Morewood's  History  of  Inventions,  etc.,  in  Inebriating 
Liquors. 


Intoxicants.  7 

tries.  The  holy  sacrament  necessitated  its  use, 
and  so  it  is  found  tliat  the  first  vineyards  of  any 
importance  were  planted  round  the  great  monas- 
teries.' 

Tacitus,  in  his  Agricola,  remarks  that  the 
Romans  found  England  fit  for  the*  cultivation  of 
all  kinds  of  fruit  trees  except  the  vine  and  olive ; 
but  yet  about  A.  D.  278  they  began  to  plant  vines 
and  make  wine  there.  Wine  was  a  common  drink 
among  the  Saxon  noblfjs.  The  union  of  the  wine- 
growing districts  of  France  with  the  English 
crown  under  the  Plantagenets  made  wine  very 
plentiful  in  England,  and  according  to  a  monastic 
chronicler,  "  filled  the  land  with  drink  and  drink- 


??  a 


ers. 

Chancellor  Walworth,  a  man  "  of  a  marvellous 
industry,  a  keen  intelligence,  and  wide  and  vari- 
ous learning,"  was  once  called  upon  to  decide  the 
question,  Is  ale  intoxicating?  He  was,  as  a 
recent  writer  in  an  interesting  sketch  tells  us,  a 
teetotaler  and  president  of  the  American  Temper- 
ance  Union,'  so  to  him  the  maxim,  experi- 
mentumfiat  in  corpore propria^  was  useless;  he, 
therefore,  resorted  to  tlio  experience  of  others  in 
bygone  days  and  distant  lands,  and  produced  a 
judgment  of  great  research  —  'one  of  the  most 
learned  in  the  books  "  —  and  one  of  the  most  in- 

'  Sarauelson,  cl.   V. 

■''  Bridgett's  Discipline  of  Drink,  pp.  88,  89. 
■  Browne's  SUort  Studies  of  Great  Lawyers,  p.  355. 


8 


Intoxicants. 


teresting/  As  it  is  well  to  speak  of  the  intoxicat- 
ing drinks  of  all  times  and  climes  the  greater 
part  of  his  opinion  will  be  qnoted ;  gleanings, 
which  the  learned  Chancellor  'left  behind  him 
when  he  reaped  the  frnits  of  the  toils  of  others, 
being  here  and  there  interjected.  It  mnst  be 
remembered  that  he  was  thinking  chiefly  of  ale. 

"Herodotus,  the  oldest  of  the  Grecian  his- 
torians, who  wrote  nearly  five  hundred  years  be- 
fore the  commencement  of  the  Christian  era,  and 
who  traveled  over  Egypt  and  Italy  as  well  as 
Greece,  says  the  Egyptians  used  a  liquor  drawn 
from  barley  by  fermentation," '  this  was  called 
zythos.  The  Father  of  historians  seems  to  have 
considered  that  this  was  used  as  a  substitute  for 
wine  in  the  lowlands  of  Egypt,  but  it  is  more 
reasonable  to  suppose  that  it  was  the  drink  of  the 
poor  in  all  parts  of  the  country.  "  Athenseus,  in 
his  Feast  of  the  Sophists,  also  cites  Aristotle,  the 
tutor  of  Alexander  the  Great,  to  show  the  intoxi- 
cating effects  of  beer  among  the  Egyptians  in  his 
day ;  and  that  those  m- ho  got  drunk  on  it  invariably 
lay  upon  their  backs,  while  those  who  got  drunk 
upon  wine  always  lay  upon  their  faces."  Beer 
w^as  not  only  in  general  use  in  Egypt  long  previ- 

'  Nevin  v.  Ladue,  3  Denio,  437.  The  extracts  are  within 
quotation  marks. 

2  Herodotus,  Book  II,  i^  77. 

'•  Athen  Deipnosophistae,  Lib.  I,  p.  IG,  c.  p.  34  B;  Lib. 
10,  p.  418  E.  Lond.  Ed.  of  1G12. 


Intoxicants. 


9 


bus  to  the  time  of  Herodotus,  but  it  had  found 
its  way  into  other  countries  as  well ;  or  at  least  it 
was  known  in  them  at  a  much  earlier  period.  It 
was  known  to  Archilochus,  the  Grecian  poet  and 
satirist,  who  flourished  about  the  time  of  the  last 
of  the  Decennial  Archons  and  near  the  end  of 
the  reign  of  the  good  king  ITezekiah,  seven  hun- 
dred years  before  the  Christian  era,  for  he,  as 
Avell  as  Sophocles,  the  tragedian,  who  wrote  three 
hundred  years  later,  calls  this  liquor  "wine  of 
barley."  From  the  Greek  poets  we  learn  that 
this  drink  was  used  in  their  daily  life  as  well  as 
at  their  festive  meetings.  There  is  little  doubt 
that  the  discovery  of  beer  and  its  use  as  an 
exhilarating  drink  were  nearly  as  early  as  that  of 
the  grape  itself.  "  Dr.  Robinson,  in  his  Hebrew 
Lexicon,  refers  to  Herodotus  and  also  to  Diodorus 
of  Sicily,  to  show  that  the  word  shekar,  usually 
translated  '  strong  drink '  in  King  James'  version 
of  the  Bible,  means  any  inebriating  liquor,  and 
includes  ale  or  beer.  He  also  refers  to  St.  Jerome 
to  show  that  it  includes  mead  or  metheglin,  an  in- 
toxicating beverage  also  well  known  to  the  ancients 
and  sometimes  called  by  them  '  wine  of  honey.' 
And  he  might  have  added  that  in  St.  Jerome's 
time  the  word  sihera^  from  the  Hebrew  shekai\ 
to  get  drunk,  was  used  to  designate  any  kind  of 
inebriating  drink,  whether  made  from  grain, 
honey,  juice  of  apples,  dates  or  other  fruits. 
Xenophon,  who  wrote  between  three  and  four 


I 


10 


Intoxicants. 


«  1 


hmidreil  years  before  the  Christian  era,  shows 
that  beer  was  then  in  use  aniontif  the  Armenians 
upon  tlie  borders  of  Kurdistan.  In  describing 
tlie  retreat  of  the  ten  thousand  Greeks,  after  the 
battle  of  Cunaxfi,  he  makes  mention  of  a  fer- 
mented liquor  prepared  from  grain,  which  the 
inhabitants  of  that  country,  through  which  they 
passed  (like  the  more  reiined  tipplers  of  the  pres- 
ent day)  sucked  through  a  hollow  reed  or  tube. 
The  passage  in  Xenophon  is  thus  translated : 
"  There  was  also  wheat,  barley  and  legumens,  and 
beer  in  jars  in  which  the  malt  itself  floated  even 
with  the  brims  of  the  vessels,  and  with  it  reed.*, 
some  large  and  others  small  without  joints. 
These,  when  any  one  was  dry,  he  was  to  take  in 
liis  mouth  and  suck.  The  liqnor  was  very  strong 
when  unmixed  with  water."  The  elder  Pliny, 
who  must  have  written  shortly  after  the  middle 
of  the  first  century,  as  he  perished  at  the  eruption 
of  Vesuvius  which  destroyed  Ilerculaneum  in 
A.  D.,  79,  notices  the  intoxicating  drinks  which 
were  in  use  among  the  different  nations  of  his 
day.  He  says,  the  drinks  of  the  Egyptians  were 
manufactured  from  grain  steeped  in  water ;  and 
that  a  similar  liquor  was  used  by  the  several 
nations  who  inhabited  Europe,  with  which  they 
intoxicated  themselves.  He  notices  the  fact  that 
the  manner  of  making  the  liquor  -was  somewhat 
dissimilar  in  Gaul,  Spain  and  other  countries; 
and  that  the  people  of  Spain,  in  particular,  brewed 


4 


Intoxicants. 


11 


the  liquor  so  well  that  it  kept  good  for  a  long 
time.  It  was  called  bv  different  names,  bnt  its 
nature  and  properties  were  the  same  in  all  the 
nations  where  it  was  in  nse.  And  to  show  that 
even  then  it  was  considered  a  curse  instead  of  a 
blessing  to  mankind,  he  remarks  that,  so  exquisite 
is  the  ingenuity  of  men  in  gratifying  their  vicious 
appetites,  that  they  have  invented  a  method  to 
make  water  itself  intoxicate !  *  Tacitus  also,  in 
describing  the  manners  and  customs  of  the  Ger- 
mans in  his  day,  notices  their  drunken  broils  from 
the  excessive  use  of  beer,  which  was  their  usual 
beverage ;  and  from  his  description  it  is  clear  that 
they  understand  the  art  of  converting  barley  into 
malt."  "Perhaps  the  people  of  Spain  had,  as 
early  as  Pliny's  time,  discovered  the  antiseptic 
property  of  hops  when  mixed  with  ale  or  beer ; 
although  hops  were  not  used  in  England  until 
some  centuries  later  "  (in  fact,  not  until  the  time 
of  Henry  IV). 

"  That  the  art  of  malting  was  in  use  before 
the  Christian  era  may  be  inferred  from  Ovid. 
He  describes  the  meeting  of  Ceres,  when  ex- 
hausted and  weary,  with  an  old  woman,  and  when 
she  requested  water  of  hei",  the  latter  presented 
the  goddess  with  some  of  this  inebriating  pro- 


'  Plin.  Nat.  Hist.  Lib.  4,  §§  12,  22 ;  Lib.  14.  §  19. 
»Tac.  De  Mor.  German.,  ^i^  22,  23,  Diod.  Sic.  Lib.V. 


rrR 


u 


12 


Intoxicants. 


duct  of  her  own  bounty  —  a  liquor  manufactured 
frou'  dry  grain.'     The  story  is  thus  translated  : 

'  The  goddess  knocking  at  the  little  door, 
'Twas  opened  by  a  woman,  old  and  poor  ; 
"Who,  when  she  asked  for  water,  gave  her  ale 
Brewed  long,  but  well  preserved  from  being  stale.' 

At  wliat  time  beer  was  lirst  introduced  into  Eng- 
land is  uncertain."  It  is  supposed,  however,  that 
both  the  art  of  malting  and  the  use  of  beer  were 
introduced  by  the  Romans.  Beer  and  vinegar 
were  the  ordinary  beverages  of  the  soldiers  under 
Julius  Caesar.  Beer  being  so  suitable  to  the  Eng- 
lish climate  and  so  easily  made  by  an  agricultural 
people  with  plenty  of  corn,  it  was  gladly  welcomed 
and  soon  became  the  national  beverage.  Pre- 
vious to  this  the  usual  drinks  of  the  ancient 
Britons  were  water,  milk  and  mead."  Some  say 
that  cider  was  early  known  to  the  Britons,  in 
common  with  the  other  northern  nations ;  and  that 
M'hen  CsBsar  invaded  the  island  such  was  the 
acquaintance  of  its  inhabitants  with  intoxicating 
liquors  that  intemperance  and  inebriety  were 
ranked  among  the  national  vices.'  "  According 
to  Morovrood,  Dioscorides  (who  wrote  in  the  time 
of  Nero)  records  the  fact  that  the  British  and 
Irish  then  used  an  inebriating  liquor  called  curmi, 

'  Ovid,  Met.  Lib.  I. 

■  Enc.  Brit.     Article  "  Brewing,"  IX  Ed. 

^  Morewood,  p  523. 


1 


; 


I 


'■' 


i 


Intoxicants. 


13 


made  from  barley.  Morewood  also  states  that 
the  manner  of  making  ale  or  beer  by  tlie  ancient 
Britons  and  other  Celtic  nations  is  thus  described 
by  Isodoriis  and  by  Orosius,  who  was  a  disciple 
of  St.  Augustine:  'The  grain  was  steeped  in 
water  and  made  to  germinate,  by  which  its  spirits 
were  excited  and  set  at  liberty,  and  it  was  then 
dried  and  ground  ;  after  which  it  was  infused  in 
a  certain  quantity  of  water,  and  being  fermented 
it  became  a  pleasant,  warming,  strengthening 
and  intoxicating  beverage."  After  the  expul- 
sion of  the  Romans  from  Britain,  the  Saxons  sub- 
dued the  natives  and  learnt  from  them  the  art  of 
brewing.  "  This  liquor  was  called  by  the  people 
of  Spain  celia  and  ce^na.  The  Britons,  as  we 
have  seen,  called  it  curmi,  and  in  Germany  and 
Gaul,  as  well  as  among  the  Romans,  it  was  called 
cervisia  or  cerevisiay  from  Ceres,  the  goddess  of 
grain,  and  vis,  power  or  strength.  Its  proper 
name  in  the  English  language,  therefore,  is  strong 
liquor,  or  strong  drink.  Burkhardt,  Salt,  Bruce 
and  other  modern  travelers  in  Egypt,  Nubia, 
Abyssinia,  etc.,  mention  a  similar  liquor  still  in 
use  in  those  countries  under  the  name  of  houza, 
which  is  made  by  fermenting  barley  and  other 
farinacious  substances  with  water,  but  without 
malting  the  grain,  which  makes  a  strong  and  ine- 
briating drink  and  is  in  extensive  use.     And  an 

'  Morewood,  p.  530. 


w 


I 


14 


Intoxicants. 


evidence  of  its  intoxicating  qualities  is  the  fact, 
stated  by  one  of  those  writers,  that  it  is  used 
sometimes  to  catch  monkeys,  who,  like  the  bipeds 
they  are  so  apt  to  imitate,  are  inclined  to  partake 
of  the  pleasures  of  the  inebriating  cup  without 
duly  considering  the  consequences.  To  effect 
his  object,  the  monkey-catcher  places  a  vessel 
filled  with  houza  at  the  foot  of  the  tree  in  which 
the  animals  are  gamboling,  and  then  watches  at 
a  distance  until  they  come  down  and  regale  them- 
selves to  intoxication ;  and  we,  who  have  seen 
the  effect  of  similar  proceedings  elsewhere,  can 
readily  imagine  what  is  the  inevitable  result  of 
this  stratagem  to  the  bouzy  monkeys." 

"  Perhaps  the  word  chica,  which  was  used  by 
the  aborigines  of  this  contineht  as  the  name  of  an 
intoxicating  beverage  found  among  them  at  a 
very  early  day,  and  produced  by  the  fermentation 
of  maize  or  Indian  corn,  was  derived  from  the 
Hebrew  root  s/iakar.  Acosta,  in  his  Natural  His- 
tory of  the  Indies  (written  in  the  sixteenth  cen- 
tury), and  Frezier,  in  his  account  of  his  voyage 
to  the  South  Sea  and  the  coast  of  Chili  and  Peru, 
about  1713,  and  other  voyagers  of  that  day,  give 
the  name  and  the  disgusting  mode  of  preparing 
that  kind  of  beer  among  the  Indians,  in  which 
,  the  saliva  of  the  females  answered  the  purpose  of 
barm  in  producing    the    vinous    fermentation.' 

'  Acosta  Hist.  Nat.  des  Indes.  p.  161  ;  Voyage  de  Frezier, 
p.  62 ;  Dampier's  Voyage  to  Campeacliy,  p.  113. 


id 


Intoxicants. 


15 


De  Lery,  who  visited  America  more  than  a  cen- 
tury before  Frezier  and  Dampier,  also  refers  to 
the  same  custom.'  Indeed,  we  learn  from  Gai- 
eilasso  de  la  Vega's  History  of  the  Incas  of  Peru, 
that  an  intoxicating  beer,  produced  by  the  fer- 
mentation of  grain,  M'as  in  use  among  the  Peru- 
vians long  before  they  were  first  visited  by  the 
Europeans;  and  they  probably  carried  the  knowl- 
edge of  the  art  of  making  it  with  them  at  that 
unascertained  period  of  time  when  adventure  or 
accident  first  brought  them  to  this  continent.' 
The  Abb6  Moulina,  in  his  History  of  Chili,  states 
the  fact  that  the  aborigines  of  that  country,  in 
burying  their  dead,  deposited  in  the  mound  with 
them  vessels  filled  with  chica  or  beer,  to  subsist 
the  deceased  on  his  passage  to  the  other  world.' 
And  it  is  worthy  of  remark  that  some  of  the 
earthen  jars,  found  in  the  Chilian  and  Peruvian 
burying  places,  were  similar  in  form  and  appear- 
ance to  those  which  Lane  says  he  saw  in  the 
tombs  at  the  necropolis  of  ancient  Thebes,  and 
which  contained  the  dregs  of  beer."  * 

According  to  Herodotus,  a  people  in  Africa 
made  drink  from  the  berries  of  the  lotos.  Lotos, 
the  name  —  divine,  nectareous  juice, 

'  Voyage  de  J.  De  Lery,  p.  134. 

*  Hist,  des  Incas,  Tome  3.  p.  196. 
3  Hipt.  of  Chili,  vol.  II,  p.  81. 

*  Lane's  Modern  Egyptians,  vol.  II,  p.  34. 


16  Intoxicants. 

which,  whoso  tastes, 
Insatiate  riots  in  the  sweet  repasts  ; 
Nor  other  home,  nor  other  care  intends, 
But  quits  his  house,  his  country  and  his  friends. 

Accordiiiff  to  Morewood,  distillation  was  wholly 
unknown  to  the  ancient  Greeks  and  Romans. 
Some  say  it  was  discovered  during,  the  Augustan 
age;  but,  if  it  was,  not  much  practical  use  was 
made  of  it.  Geber,  the  Arabian  savant,  speaks 
of  it,  and  gives  directions  as  to  practising  the  art. 
Morewood,  however,  refuses  to  give  to  the  Ara- 
bians the  honor  of  the  discovery  (in  fact,  he  does 
not  seem  to  think  much  of  the  Arabs),  and  thinks 
that  they  drew  their  knowledge  from  the  cradle 
of  the  human  race,  the  distant  East.  The  word 
"  alcohol "  is,  no  doubt,  from  the  Arabic,  and  sig- 
nifies "the  pure  spirit;"  originally  the  term  was 
applied  to  a  fine  powder,  used  by  the  ladies  to 
give  additional  brilliancy  to  their  complexions. 
At  first,  alcohol  was  considered  a  poison,  and  no 
one  thought  of  using  it  for  a  drink ;  about  A.  D. 
1230  it  came  into  vogue  in  the  south  of  Europe ; 
from  thence  it  spread  throughout  the  civilized 
world.  Those  old  know-alls,  the  Chinese,  appear 
to  have  understood  tlie  art  of  distilling,  far  back 
before  the  date  of  any  of  their  authentic  records. 

It  seems  clear  that  distillation  was  introduced 
into  England  by  the  celebrated  friar,  Roger 
Bacon,  about  the  thirteenth  century.  The  knowl- 
edge of  the  process  was  confined  for  a  long  time 


Intoxicants. 


17 


to  tlie  members  of  the  religions  lionses  (parsons 
then,  as  now,  had  a  faculty  of  getting  hold  of 
good  things \  and  its  product  was  sold  and  used 
only  as  a  medicine ;  but  upon  the  dissolution  of 
the  monasteries,  shortly  before  the  middle  of  the 
sixteenth  century,  the  knowledge  of  the  art  be- 
came general.  It  was  commonly  known,  how- 
ever, in  Ireland  long  before  the  time  of  Henry 
VIII  as  usquebaugh. 

In  Morocco  they  have  long  distilled  a  brandy 
from  the  refuse  of  the  grape,  as  well  as  from  rai- 
sins. The  Kaffirs  have  made  for  ages,  and  still 
make,  a  fermented  drink  of  beer  from  the  seed 
of  the  millet,  which  is  first  subjected  to  a  malt- 
ing process  in  all  essential  particulars  identical 
with  our  own.  The  Zulus,  also,  use  millet  seed 
and  :  kind  of  rape  seed  for  a  like  purpose.  Ac- 
cording to  Mungo  Park,  the  natives  of  Africa, 
also,  make  a  beverage  from  the  seeds  of  the 
spiked  or  eared  soft-grass.  The  Abyssinians,  like 
the  Moors,  extract  a  very  strong  brandy  called 
Shdmhacco  from  the  husks  and  stones  of  the 
grapes,  after  the  juice  is  pressed  out.  The  Rus- 
sians drink  kvass  or  quass,,  a  thick,  sour  beverage, 
not  unlike  bouza,  and  made  out  of  barley  and 
rye-flour,  mixed  with  water  and  fermented.  For- 
merly the  spruce,  fir,  birch,  maple  and  ash  trees 
were  tapped  and  their  sap  used  in  England,  after 
being  fermented ;  the  first  two,  indeed,  until 
within  the  last  fifty  years.  An  old  Welsh  gene- 
2 


^ 


18 


Intoxicants. 


alogy  savs,  "  Coranit,  tlio  (li'iinkard,  was  the  tirst 
who  made  malt  liquor  i)roperly,  and  he  gave  him- 
self up  to  drunkenness,  in  which  state  he  died." 
The  chief  drink  of  the  Norwegian  was  drawn 
from  the  hirch-tree.  The  willow,  poplar,  syca- 
more and  walnut  also  yield  palatable  drinks  after 
fermentation.  In  Sweden  a  species  of  black  ant 
is  employed  with  rye  to  give  flavor  and  potency 
to  the  brandv.  Jummiss.  the  driidc  of  the  Tar- 
tar  race,  is  the  fermented  milk  of  their  mares ; 
when  they  cannot  get  mare's  milk,  these  wander- 
ing tribes  use  that  of  the  cow,  the  sheep  or  the 
camel.  They  prefer  the  mare's  milk,  as  it  lias  an 
alkaline  taste  and  yields  one-tenth  more  alcohol 
than  the  cow's.  The  Circassian's  favorite  drink, 
shhon,  is  distilled  from  the  mare's  milk.  Some 
say  the  Almighty  himself  revealed  the  knowl- 
edge of  its  manufacture  to  Abraham ;  others, 
that  the  angel  showed  Ilagar  the  process  when 
she  was  fainting  from  thirst  in  the  wilderness,' 
The  Afghans  prepare  a  strong  drink  from  the 
milk  of  sheep.  The  Khirghises  make  a  very 
strong  liquor  from  a  berry  called  psak.  In  Thibet 
chong  is  made  by  fermenting  wheat,  rice  or  bar- 
lev.  The  Chinese  liquor,  sam-slwe^  is  from  rice, 
and  is  not  only  intoxicating,  but,  like  absinthe, 
peculiarly  mischievous  in  its  permanent  effects. 
These  Celestials  are  particularly  skilful  in  distil- 

'  More  wood,  r>,  506  ei  al. 


Intoxicants. 


19 


lation,  and  not  only  extract  intoxicants  from  rice, 
the  ])alm  and  varions  fruits,  but  also  a  very  ardent 
spirit  from  mutton.  This  drink  is  said  to  be  fit 
for  the  use  of  emperors.  The  most  voluptuous 
orgies  of  the  Mantchoo  Tartars  take  place  when 
they  get  drunk  on  this  lamb  wine.  In  France, 
at  one  time,  they  liad  a  liquor  somewhat  akin  to 
this,  extracted  from  the  flesh  of.  calves,  kids, 
chickens,  fat  hens,  partridges,  and  cock-pheasants, 
pounded  small,  with  some  barley,  the  juice  of 
fresh  roses,  citron  and  cinnamon-water  added.' 
In  the  northern  part  of  Formosa  a  spirit  of  con- 
siderable strength  is  made  from  wood-ashes. 
Sake^  a  strong  and  wholesome  beer,  procured 
from  rice,  is  the  favorite  drink  in  Japan,  and  has 
been  so  from  remote  ages.  Miss  Bird  tells  us 
that  it  has  five  distinct  tastes  —  sweetness,  sharp- 
ness, sourness,  bitterness  and  astringency,  with  a 
flavor  of  fusil  oil.  It  contains  from  11  to  17 
per  cent  of  alcohol.  Once  upon  a  time  a  mikado 
dug  a  lake  and  filled  it  with  sake,  and  sailed 
about  on  it  in  a  stately  barge.  The  Japs  also 
make  wine  from  plums ;  they  tap  the  palm  and 
the  birch,  and  ferment  the  juice,  and  distil  a 
strong  drink,  conducive,  they  say,  to  long  life, 
from  the  flowers  of  the  motherwort  and  of  the 
peach." 

The  Kamtschatdales  get  a  strong  spirit  from  a 


»  Pare  Works,  ch.  8. 


"^  Mo  re  wood,  p,  242. 


20 


Intoxicants. 


iC    '![ 


reddish  mnsliroom  ;  also  n  sweet  but  fiery,  ardent, 
pungent  beverage  called  raka,  from  a  grass.  From 
the  Institutes  of  Manu  it  seems  tliat  the  Hin- 
doos had  three  intoxicants,  one  extracted  from 
the  dregs  of  sugar,  another  from  bruised  I'ice, 
and  a  third  from  tlio  flowers  of  the  madhuca 
tree.  In  Borneo,  and  some  of  the  adjacent  isles, 
a  strong  inebriating  beverage  is  made  from  the 
rooLs  of  the  pepper,  or  cava,  plant ;  these  are 
chewed  and  then  put  in  water  or  cocoanut  milk, 
and  quickly  fermentation  takes  place  ;  the  natives 
delight  in  it  and  indulge  often  to  excess.  In  some 
places  only  young  persons  with  good  teeth  are 
allowed  to  take  part  in  the  chewing  process  ;  in 
others,  only  the  the  old  woinen,  while  the  young 
maidens  merely  add  their  saliva  to  thin  the  paste.' 
In  Otaheite  when  one  became  drunk  with  this 
the  usual  remedy  was  to  pluck  his  hair  out  by 
the  roots."  In  Madagascar  a  drink  called  toiipare 
is  made  from  the  sugar  cane  ;  it  has  a  pungent, 
bitterish  taste,  not  unlike  beer  highly  hopped. 

In  South  America,  a  favorite  drink  is  pcdqtie, 
the  fermented  juice  of  the  American  aloe. 
Guarapo  is  the  juice  of  the  sugarcane,  fermented ; 
it  is  the  common  tipple  of  the  negro  races  in 
South  America.'  When  the  negroes  of  the  West 
Indies  could  not  procure  rum,  they  nuide  a  fer- 

'  Morewood,  p.  350. 

'  Cook's  Voyajjes,  vol.  T,  p.  350. 

^  Enc.  Brit.,  Article, Brewing. 


Intoxicants. 


21 


mented  drink  from  tlie  cassava  plant.  In 
Surinam  the  Indians  make  a  similar  drink  ;  the 
women  chew  the  bread  or  flower,  and  spitting  it 
into  a  wooden  bowl  add  water  to  it,  and  fermenta- 
tion soon  takes  place. 

In  France  very  good  brandies  have  been  ex- 
tracted from  the  root  of  the  Jerusalem  artichoke, 
potato-berries,  potatoes  themselves,  and  beets.  In 
Hungary,  brandy  is  distilled  from  both  potatoes 
and  plums,  as  well  as  grapes  and  elder  berries. 
The  Germans,  too,  make  potato  brandy.  The 
modern  Swiss  solaces  himself  amid  his  Alpine 
snows  with  a  spirit  distilled  from  the  gentian.  In 
some  of  the  Western  Isles  heather  formed  a 
principal  ingredient  in  the  beer,  but  the  right 
way  to  use  it  has  long  since  been  forgotten. 
Drinking  heather  beer  was  one  of  the  pleasures 
which  departed  heroes  enjoyed  in  the  society  of 
the  gods.  In  Cantyre,  usquebaugh  was  drawn 
from  thyme,  mint,  anise  and  other  fragrant 
herbs. 

In  England,  in  the  fifteenth  centurj^,  water 
was  looked  upon  as  an  unwholesome  drink.  The 
young  princess,  Catharine  of  Arragon,  was  in- 
structed before  she  left  Spain,  "  to  accustom  her- 
self to  drink  wine,  since  the  water  in  England 
was  not  drinkable,  and  even  if  it  were,  the 
climate  would   not  allow  the   drinking  of   It."' 


■ll 


'  The  Discipline  of  Drink,  p.  8?>. 


22 


Intoxicants. 


About  tlio  same  time  Sir  John  Fortescue  boasted 
that  the  English  never  drank  water  except  as  a 
penance.  On  the  otlier  liand,  according  to  the 
old  poet,  no  other  kind  of  drink  was  unwelcome 


to  the  English  taste 


The  Russ  drinks  quass  ;  Dutch,  Lilbeck  beer, 

And  that  is  strong  and  mighty  ; 
The  Breton,'  he  metheglin  quaffs, 

The  Irish,  aqua  vitse  ; 
The  French  affects  the  Orleans  grape, 

The  Spaniard  tastes  his  sherry  ; 
Tlie  English  none  of  these  can  'scape, 

But  he  with  all  makes  merry.'' 


'  i.  e.,  the  Welshman. 

*  Hey  wood's  Rape  of  Lucrece, 


(Percy  Society.) 


i'l 


Historical. 


23 


CHAPTER  II. 
HISTORICAL. 


i 


J 


In  this  chapter  the  rules  and  laws  of  divers  na- 
tions, in  different  times,  I'elative  to  intemperance 
and  the  use  of  intoxicants,  will  be  briefly  touched 
upon. 

Turning  first  to  the  Ancient  East.  Among  the 
Jews  certain  persons  were  strictly  forbidden  to 
use  wine  or  strong  drink,  as  Aaron  and  his  suc- 
cessors in  the  high-priestly  oflice. '  The  Naz- 
arites  —  men  separated  to  the  Lord  —  were  re- 
quired to  abstain,  not  only  from  wine  and  intoxi- 
cating drinks,  but  even  from  vinegar  and  any 
syrup  or  preparation  of  the  grape,  and  from 
grapes  themselves  and  raisins.  All  the  days  of 
their  Nazaritebhip  they  were  to  eat  nothing  made 
of  vine,  from  the  kernel  to  the  husk."  The  Recha- 
bites,  too,  were,  by  command,  total  abstainers,^ 
and  when  trouble  came  upon  the  congregation, 
then  eating  of  flesh  and  drinking  of  wme  were 
forbidden  to  all.*  Again  and  again,  in  both  the 
Testaments,  drunkenness  is  severely  censured  and 
pronounced  a  sin,  and  the  drunkard  is  classed 


1  Lev.  X,  9. 
'Num.  VI,  3. 


3  Jer.  XXXV,  7. 

■»  Polano's  Talmud,  p.  261. 


J? 


'. « 


'I 


1 


24 


Historical. 


!|!l^! 


with  criminals  of  tlie  deepest  dye  ;  and  from  one 
passage  some  argue  that  the  punishment  inflicted 
upon  a  drunkard  was  death  — "  all  the  men  of 
thecitv  shall  stone  him  with  stones  that  he  die."  ' 
Among  the  followers  of  Buddha  the  monks 
were  bound  to  abstain  totally  from  all  intoxi- 
cating beverages ;  and  even  the  laity  who  desired 
to  raise  themselves  into  a  higher  state  of  existence 
could  not  drink  strong  drink.  To  do  so  was  to 
sin  as  grievously  as  to  lie,  steal  or  commit  adul- 
tery. That  wonderful  man,  Gautama,  said  to  his 
listening  disciples,  "  To  cease  and  abstain  from 
sin,  to  eschew  strong  drink,  not  to  weary  in  well 
doing —  this  is  the  greatest  blessing."  *  The  laws 
of  Manu  (who  lived  in  India  somewhere  between 
the  sixth  and  the  ninth  centuries  before  Christ) 
contain  many  decrees  against  drunkenness;  some 
are  as  follows :  "  Any  twice-born  {i.  e.  regen- 
erated) man  who  has  intenti(m,ally  drunk  the 
spirit  of  rice  (sura)  through  perverse  delusion  of 
mind,  may  drink  more  spirit  in  flame  and  atone 
for  his  offence  by  severely  burning  his  body," 
"  or  he  may  drink  boiling  hot,  until  he  die,  the 
urine  of  a  cow,  or  jjure  water,  or  milk,  or  clarified 
butter,  or  juice  expressed  from  cow  dung."  "  If 
he  tasted  it  unknowi7igly,  he  may  expiate  the 
sin  by  eating  only  a  little  broken  rice,  or  grains 
of  tila  from  which  oil  has  been  extracted,  once 

'  Deut.  XXI,  21.  8  Enc  Brit.,  Article,  Buddliism. 


Historical. 


25 


every  night  for  a  whole  year,  wrapped  in  coarse 
vesture  of  hairs  from  a  cow's  tail,  or  sitting  un- 
cle thed  in  his  house  wearina;  his  locks  and  beard 
uncut,  and  putting  out  the  flag  of  a  tavern-keeper." 
"  The  slayer  of  a  priest,  a  soldier  or  merchant 
drinking  arrack,  mead  or  rum  *  *  *  are  all 
considered  offenders  of  the  highest  degree.  *  *  *  " 
Terrible  punishments,  such  as  branding  the  fore- 
head with  a  hot  iron,  were  the  penalties  attached 
to  such  crimes,  "  and  with  none  to  eat  with  them, 
with  none  to 'sacrifice  with  them,  with  none  to 
read  with  them,  wit!i  none  to  be  allied  by  mar- 
riage with  them,  abject  and  excluded  from  all 
social  duties,  let  them  wander  over  this  earth. 
Branded  with  indelible  marks,  they  shall  be  de- 
serted by  their  fraternal  and  maternal  relations, 
treated  by  none  with  affection,  received  by  none 
with  respect."  And  after  death  the  soul  of  the 
poor  priest  who  has  indulged 'in  strong  drink  is 
consigned  to  the  body  of  "  a  smaller  or  larger 
worm  or  insect,  a  moth,  a  fly,  feeding  on  ordure, 
or  some  ravenous  animal."  '  Notwithstanding 
these  dire  penalties  drunkenness  still  continued 
rife  among  the  Aryan  races  of  India. 

In  respect  of  eating  and  drinking,  the  Persians 
were,  in  the  earlier  times,  noted  for  their  temper- 
ance and  sobriety.     Their  sole  drink  was  M^ater. 


1 


i 


'  Institutes  of  Hindoo  Law,  ch.  XI.     Translated  by  Sir 
Wm  Jones.     Saniuelson's  History  of  Drink,  cit.  III. 


I 


26 


Historical. 


Zoroaster  strictly  forl)ade  his  followers  to  in- 
dulge ill  drunkenness  —even  to  simulate  intoxi- 
cation was  deemed  sinful.  But  these  abstemious 
habits  were  soon  put  aside.  Instead  of  water, 
wine  became  the  usual  beverage ;  each  man  prided 
himself  upon  the  quantity  he  could  drink;  most 
banquets  terminated  in  general  intoxication. 
Drunkenness  became  a  kind  of  institution.  Once 
a  year,  at  the  feast  of  Mithras,  the  king  of  Per- 
sia (according  to  Duris),  was  bound  to  be  drunk. 
A  general  practice  arose  of  deliberating  on  all 
important  affairs  under  the  influence  of  wine,  so 
that  in  every  household,  when  a  family  crisis  im- 
pended, intoxication  was  a  duty ;  so,  also,  public 
affairs  were  discussed  by  the  people  after  drink 
had  rendered  them  incapable.' 

Mohammedans  as  well  as  Buddhists  and  Brahm- 
ins are  forbidden  to  use  wine.  The  Koran  says : 
"  They  will  ask  thee  concerning  wine  and  lots. 
Answer,  in  both  theso  is  great  sin,  and  also  some 
things  of  use  to  men  ;  but  their  sinfulness  is  greater 
tliau  n^^^ir  use.""  And  in  another  place  it  is 
w  '!  :  ;  •*  O,  true  believers,  surely  wine  and  lots 
and  iii^H«^c8  and  divining  arrows  are  abominations 
and  the  works  of  Satan,  therefore  avoid  them, 
that  ye  may  prosper.  Satan  seeketh  to  sow  dis- 
sension and  hatred  among  you  by  means  of  wine 
and  lots,  and  to  divert   yon  from  remembering 

'  RawliDson'a  Ancient  Monarchies.  *  Chapter  II. 


Historical. 


21 


God,  and  from  prayer.  Will  ye  not,  therefore, 
abstain  from  these  ? "  ' 

Soliman  the  First  was  such  a  true  con  oi  the 
prophet,  that  lie  caused  molten  lead  to  be  poured 
down  the  throats  of  those  who  obstinately  trans- 
gressed and  took  the  forbidden  cup.  Although 
the  Koran  has  one,  if  not  more  than  one,  passage, 
which  seems  to  justify  the  use  of  intoxicating 
drinks  in  moderation,  still  the  Mussulmans  them- 
selves regard  wine  and  other  intoxicants  as  un- 
lawful, and  a  very  large  proportion  of  the  faithful 
really  abstain  from  their  use. 

Ill  China,  about  1116  B.  C,  an  imperial  edict 
was  promulgated,  called  "  The  Announcement 
against  Drunkenness."  By  this  strange  docu- 
ment it  was  directed  that "  the  people  "  who  drank 
should  be  put  to  death,  while  the  ministers  and 
officers  of  the  government  who  so  indulged  should 
"be  taught  for  a  time."  The  Emperor,  however, 
recognized  the  sad  truth  that  "  spirits  are  what 
men  will  not  do  without.  To  prohibit  them,  and 
secure  a  total  abstinence  from  them  is  beyond  the 
power  even  of  sages."  "  The  Chinese  have  laws 
regulating  the  sale  of  spirituous  liquors,  and 
guarding  against  irregularities.  One  such  enact- 
ment says :  "  A  man,  who,  intoxicated  with 
liquor,  commits  outrages  against  the  laws,  shall 
be  exiled  to  a  desert  country,  there  to  remain  in 


■vt 


in 


Chapter  V. 


'  SamuelsoR,  ch.  IV, 


<i  11: 


I 


28 


Historical. 


a  state  of  servitude."  With  them  occasional  in- 
toxication is  not  considered  shameful,  but  treated 
with  ridicule  or  pity ;  and  the  laws  are  only  to 
restrain  habitual  and  egregious  offenders,' 

The  Egyptians  indulged  largely  not  only  in 
wine,  but  also  in  beer,  and  the  antiquarians  have 
preserved  a  law,  in  force  among  them,  forbidding 
the  use  of  intoxicants  among  the  people  at  large. 
Pliny  tells  us,  that  young  men  under  thirty  were 
not  allowed  to  drink  wine,  except  at  the  sacri- 
fices.* What  an  incentive  this  must  have  been 
to  the  strict  and  regular  performance  of  religious 
duties  !  Plutarch,  in  his  "  Treatise  on  Osiris  and 
Isis," '  says :  "  As  to  wine,  they  (among  the 
Egyptians)  who  wait  upon  the  gods  in  the  city 
of  the  Sun,  carry  absolutely  none  into  the  temple, 
as  something  not  seemly  to  drink  in  the  day-time, 
the  Lord  and  King  looking  on  ;  but  the  other 
pj'iests  use  wine,  a  little,  indeed,  and  they  have 
many  sacred  solemnities  free  from  it.  Even  the 
kings  themselves,  being  of  the  order  of  priests, 
have  their  wine  given  to  them  according  to  a 
certain  measure  as  prescribed  in  the  sacred  books. 
They  began  to  drink  this  in  the  time  of  Psam- 
metichus,  previous  to  which  they  drank  none  at 
all.  Tliey  tliink  that  drinking  wine  in  quantities 
make  men  silly  anr'  mad."    One  Amen-em-an,  an 

'  More  wood,  p.  2'<J6. 

'^  Williamson's  Egyptians,  vol.  II,  p.  167. 

3  Sec.  VI. 


Historical. 


29 


official  of  tlie  royal  house,  about  tlie  time  of 
Moses,  wrote  to  Pentaour,  a  poet,  in  the  follow- 
ing strain  :  "  If  beer  gets  into  a  man  it  overcomes 
the  mind.  Thou  art  then  like  an  oar  starting 
from  its  place,  which  is  unmanageable  in  every 
way.  Thou  art  like  a  shrine  without  its  god ; 
like  a  house  witliout  its  provisions,  whose  walls 
are  found  shaky.  Thou  knowest  that  wine  is  an 
abomination.  Thou  hast  taken  an  oatli  concern- 
ing strong  drink,  that  thou  wouldst  not  take  it. 
Hast  thou  forgotten  thy  resolution  ? " 

In  Greece  a  law  of  Pittacus,  of  Mitylene, 
enacted  that  any  one  who  committed  a  crime 
when  intoxicated  should  receive  a  double  pun- 
ishment ;  one  for  the  crime  itself,  the  other  for 
the  intoxication  that  led  him  to  transgress.' 

Plato,  in  his  ''Laws"  (Book  II),  puts  into  the 
mouth  of  his  Athenian  guest  certain  remarks 
which  the  others  pronounce  to  be  verj'^  good. 
"In  preference,"  he  says,  "to  the  custom  of  the 
Cretans  and  the  Lacedemonians,  I  would  favor 
the  Carthaginian  law,  viz.,  that  no  one  when  in 
camp  is  to  taste  of  wine,  but  is  to  exist  upon 
water  during  the  wliole  period  ;  and  that  in  a  city 
neither  a  male  nor  a  female  slave  should  ever 
taste  it ;  nor  should  magistrates  during  their  term 
of  office;  nor  rulers,  nor  judges  engaged  in  busi- 
ness taste  it  all ;  nor  any  one  who  goes  to  any 

'  Puff.  Law  of  Nat.  B.  VIII,  ch.  3, 


in 


tit 


T 


30 


HiSTORICAr-. 


council  to  deliberate  upon  any  matter  of  mo- 
ment; neither  should  any  one  at  all  drink  it  in 
the  day-time.'' 

Among  the  many  safeguards  established  to 
preserve  female  purity  in  Home,  was  an  enact- 
ment forbidding  women  even  to  taste  the  juice 
of  the  grape ; '  and  this  very  intelligible  law 
being  enforced  with  the  earliest  education,  be- 
came, at  last,  by  habit  and  traditionary  rever- 
ence, so  incorporated  with  the  moral  feelings  of 
the  people,  that  its  violation  was  spoken  of  as  a 
monstrous  crime.  Aiilus  Gellius  has  preserved 
a  passage  in  which  Cato  observes  —  in  words 
which  must  make  the  advocates  of  women's 
rights  think  very  little  of  the  old  philosopher  — 
that  "the  husband  has  an  absolute  authority 
over  his  wife;  it  is  for  him  to  condemn  and  pun- 
ish her,  if  she  has  been  guilty  of  any  shameful 
act,  such  as  drinking  wine  or  committing  adul- 
tery." "  This  view  of  the  law  of  husband  and 
wife  is  not  approved  of  in  the  republic  of  Massa- 
chusetts. A  recent  case  there  decides  that  even 
beating  or  striking  a  wife  violently  with  the  open 
hand  is  not  allowable,  although  she  be  drunk  or 
insolent."  The  poet  of  the  American  Law  Re- 
view thus  gives  the  decision : 

'  Lecky's  History  of  European  Morals,  vol.  I,  p.  95. 

*  Aulus  Gellius,  Noctes  X,  23. 

'  Common  weal  til  v.  McAfee,  108  Mass.  458. 


lllSTOUICAL. 


31 


Hugh  McAfee,  ot  HdsIou  town, 
Claimed  that,  at  foiumou  law, 
He  bad  the  right  when  she  was  druuk, 
To  beat  his  wife  therefor. 
As  a  defence  be  claimed  it, 
Upon  bis  trial  day; 
And  swore  bis  wife  was  insolent, 
And,  when  he  struck,  he  never  meant, 
To  take  her  life  away. 
Then  out  spake  Reuben  Chapman, 
Chief  justice  of  the  court; 
•'  To  every  woman  in  this  State, 
Life  may  be  long  or  short. 
But  while  I  bold  tliis  office, 
No  woman  in  this  land 
Shall  lawfully  be  beaten 
By  her  husband's  cruel  hand." 
Hugh  McAfee,  the  husband,  was 
Convicted  of  manslaughter; 
And  thus  the  everlasting  right 
To  every  wife  and  daughter, 
By  brave  old  Beuben  Chapman's  act, 
Was  given  on  that  day, 
To  get  druuk,  and  be  insolent, 
Free  from  a  husband's  sway. 


-i 


Tlie  Roman  law  on  the  snbject  is  given  by 
Dionysins  Halicarnassus.  Valerius  Ma.\inins 
says:  "  Vini  usus  olim  Romanis  feniinis  igno- 
tus  fuit,  no  scilicet  in  aliqnod  dedeens  prolabe- 
rentnr;  quia  proximus  a  libero  patre  inteni- 
perantiai  gradus  ad  ineoncessani  venerem  esse 
consuevit."  '     Pliny  ascribes  the  promulgation  of 

'  Val.  Max.  II,  1.  §5. 


I  > 


32 


Historical. 


this  law  against  women  drinking  wine  to  that 
mythical  king,  Romnlus,  and  he  mentiom  two 
instances  in  which  women  were  ])ut  to  death  for 
thus  offending;  one,  in  which  a  wife  was  cud- 
gelled to  death  by  her  husband  because  caught 
by  him  drinking  wine  out  of  the  cask ;  the  other, 
in  which  a  lady  was  starved  to  death  by  her  own 
relations  because  she  had  picked  the  lock  of  the 
box  in  which  were  the  keys  of  the  wine  cellar; 
and  a  third  instance  where  the  transgressor  paid 
for  her  sin  by  the  loss  of  her  dowry.  Cato  says 
that  his  countrymen  were  accustomed  to  kiss 
their  wives  for  the  purpose  of  discovering 
whether  or  no  they  had  been  drinking  wine. 
The  whirligig  of  time  has  changed  this.  Ainoii;.'; 
the  Auglo-Saxons  the  women  now  give  thcsse 
Judas  kisses.  The  Bona  Dea,  it  is  said,  w;i3 
originally  a  woman  named  Fatua,  famous  for 
her  modesty  and  fidelity  to  her  husband  ;  unfor- 
tunately having  found  a  cask  of  wine  in  the 
cellar  she  got  intoxicated,  and  her  worthy  spouse 
scourged  her  to  death.  He  after  repented  of 
what  he  had  done,  and  to  make  amends  paid  her 
divine  honors.  If  it  is  true,  as  asserted,  that  her 
modesty  was  so  great  that  after  her  marriage  she 
never  saw  a  man  except  her  husband,  'tis  little 
wonder  that  ennui  drove  her  to  the  flowins:  bowl. 
Toward  the  decline  of  the  commonwealth  and 
under  the  first  emperors,  the  ladies  were  enfran- 
chised and  became  accustomed  not  only  to  take 


IllSTOltlCAL. 


33 


wine,  but  also  to  tako  it  as  copiously  aa  did  their 
lords,  who  —  if  Pliny  is  to  be  credited  —  far  sur- 
passed the  modems.  Seneca  complains  bitterly, 
in  his  day,  of  the  drinking  habits  of  the  W(,.nen. 
In  the  time  of  Tertullian,  the  prohibition  of  the 
iioman  women  as  to  the  use  of  wine  was  obsolete ; 
and  the  love  of  the  wine-cup  was  one  of  the  great 
trials  of  St.  Monica,  as  her  worthy  son  has  kindly 
informed  all  the  ages.' 

The  Milesians,  also,  and  the  inhabitants  of 
Mareeilles,  are  said  to  have  had  laws  directing 
their  women  to  abstain   from  the  juice  of  the 


grape. 


In  the  early  days  of  Rome  men  were  not  al- 
lowed to  use  wine  until  of  the  mature  aue  of 
thirty. 

Under  the  old  Roman  law  intemperance  was 
not  allowed  to  aflFect  the  liability  of  a  criminal. 
The  principal  distinction  which  the  jurists  of 
Rome  kept  in  view,  namely,  M'hether  a  crime  was 
committed  with  a  malicious  intent,  or  ex  anirrii 
impetu^  was  applied  in  later  days  to  the  case 
of  drunkenness.  They  held  drunkenness  to  be  a 
kind  of  hnpetus,  and  that  a  drunken  man  when 
he  committed  a  crime  was  equally  punishable,  but 
shonld  not  be  put  upon  the  same  footing  as  an 
offender  acting  in  cold  blood  and  calculating  his 

'  Aagustine*s  Confessions,  IX,  8. 
«  Aelian.  Hist.  Var.  II,  38. 

3 


Hi 


';  ■: 


.'!! 


I<  ! 


..i  : 


it       ■ 


I 


i! 


34 


HiSTOlilCAL. 


act  with  clear  consciousness.  Where  the  offence 
was  of  such  a  nature,  that  if  committed  without 
clear  consciousness  and  a  malicious  intent,  it 
would  lose  its  injurious  character  and  be  no  longer 
dangerous  (as,  for  example,  the  offence  of  speak- 
ing against  the  government),  or  where,  by  reason 
of  drunkenness,  an  act  which  would  otherwise  be 
a  gross  dereliction  of  official  duty  becomes  only  a 
culpa  or  fault ;  in  these  cases  drunkenness  was 
taken  into  consideration.  If  soldiers  attempted 
to  mutilate  themselves  or  to  commit  suicide,  their 
drunkenness  was  regarded  as  a  mitigating  circum- 
stance. The  Justin ianean  collection,  however, 
contains  no  general  principle  declaring  intemper- 
ance to  be  a  ground  of  exculpation  as  to  crimes 
and  offences  in  general.' 

To  leave  Europe  for  a  time  and  glance  at  Asia, 
the  Isles  of  the  Sea,  and  the  New  "World.  In 
Bnrmah  at  one  time  intoxication  was  visited  with 
the  death  penalty."  In  the  Society  Islands  it  is 
enacted  that  if  a  man  drinks  spirits  till  he  becomes 
intoxicated,  and  is  then  troublesome  or  mischiev- 
ous, the  magistrates  shall  cause  him  to  be  bound 
or  confined,  and,  when  the  effects  of  the  drink 
have  subsided,  shall  admonish  him  not  to  offend 
again.  But  if  he  is  obstinate  in  drinking  spirits, 
and  when  intoxicated  becomes  mischievous,  he  is 

..vlittermaier,    Effect  of   DrunkennesH   upon   Criminal 
Repponsibility,  ^  1. 
'  Morewood's  History,  p.  175. 


Historical. 


35 


to  be  brought  before  the  magistrate  and  sen- 
tenced to  labor  —  if  a  man,  at  road-making  or 
fence  building ;  if  a  woman,  at  making  mats  or 
cloth.' 

Among  the  ancient  Mexicans,  intemperance 
was  considered  a  grievous  crime  and  punished 
with  the  severest  penalties.  Young  people  found 
guilty  were  executed,  and  old  persons  were  visited 
with  loss  of  rank  and  confiscation  of  property.^ 
Humboldt  tells  us  that  although  drunkenness  was 
very  common  in  Mexico  in  his  day,  the  punish- 
ment was  severe,  for  tumbrils  were  sent  round 
every  night  to  collect  the  drunkards  lying  about 
the  streets.  The  captives  were  then  taken  to  the 
watch-liouse  and  afterward,  with  iron  rings  round 
their  ankles,  were  compelled  for  three  days  suc- 
cessively to  clean  the  streets  of  the  city,  as  a 
punishment  for  their  irregularities." 

Very  early  in  the  history  of  their  nation  the 
Germans,  of  all  classes  and  both  sexes,  indulged 
fi'eely  in  intoxicating  beverages.  Charlemagne 
tried  by  imperial  edicts  to  reform  tl\e  drinking 
habits  of  his  subjects..  He  forbade  suitors  or 
witnesses  t  ">  appear  in  court  intoxicated,  carls  to 
sit  in  judgment  unless  perfectly  sober,  and  priests 
to  otfoi'  drink  to  penitents.  Soldiers  found  drunk 
were  restricted  to  water  as  a  beverage  until  they 


M 


m 


i 


'  Ellis,  Polynesian  Reseaiches,  vol.  II,  483. 
'  Prescott,  Conquest  of  Mexico,  vol.  I,  35. 
'  Political  Essay  on  New  Spain,  vol.  I,  100. 


i 


36 


IIlSTOKICAL. 


confessed  their  sin  and  asked  forgiveness.  But 
tliese  edicts  were  of  little  avail ;  others  were 
passed  from  time  to  time,  sucli  as  those  of  Fred- 
erick III  and  Charles  IV,  ordering  drunkenness 
to  be  severely  punished.' 

In  Scotland,  at  a  very  early  day,  the  brewing 
of  ale  and  mead  for  sale,  as  well  as  the  selling  of 
wine,  was  controlled  by  law.  The  customs  of  the 
principal  bui-ghs  were  consolidated  in  the  reign 
of  David  I  (1124-1153),  many  of  them  being 
older  than  tlie  twelfth  century.  A  tax  of  four 
pence  was  paid  for  a  yearly  license  to  brew 
and  sell  ale.  It  was  forbidden  to  carry  the  ale 
into  another  town  to  be  sold.  'No  one  could  sell 
it  unless  it  had  been  brewed  for  sale  and  pre- 
viously lasted.  Public  tasters  were  appointed  to 
test  and  appraise  tlie  ale,  and  in  so  doing  they 
were  sworn  to  spare  or  favor  no  one.  The  meas- 
ures used  were  to  be  all  marked  with  the  seal  of 
the  burgh.  Public  officials  were  forbidden  to 
brew  for  sale.  The  brewing  and  selling  seems  to 
have  been  a  peculiarly  feminine  occupation.  One 
law  was  as  follows:  "What  woman  that  w'ill 
brew  ale  to  sell  shall  brew  all  tlie  year  tlirough, 
after  the  custome  of  the  town.  And  if  she  does 
not,  she  shall  be  suspended  of  her  office  by  the 
space  of  a  year  and  a  day,  and  she  shall  make  good 

'  Petersen,  GeschicLte  der  Deutsclien  Nationalneiguiig 
zum  Trunke,  p.  128  ;  Samuelson,  ch.  VIII. 


HiSTOllICAL. 


37 


ale  and  approvable  as  the  time  asks.  And  if  slie 
makes  evil  ale,  and  does  against  the  custome  of 
the  town,  and  be  convicted  of  it,  she  shall  give 
to  her  amercement  eight  shillings  or  be  put  on 
the  cnck-stool,  and  the  ale  shall  be  given  to  the 
p^)or  lolk,  the  two  parts,  and  the  third  part  sent 
to  tiie  brethren  of  the  hospital.  And  each  brewer 
shall  put  her  ale  wand  outside  her  house  at  her 
window  or  above  her  door  that  it  may  be  visible 
to  all  men.  And  ii  she  do  not  she  sliall  -pDj  4d. 
fine."  '  A  public  visitor  of  the  burghs  was  ap- 
pointed who  had  to  see  that  all  these  things  were 
carried  out,  and  among  other  things,  if  the  brew- 
ster-wives  filled  up  the  measures  to  the  brim  with 
ale  or  only  v.  ith  froth. 

Many  vrere  the  laws,  enactmeni-s,  decrees,  ca- 
nons, paslxinu;'  and  regulations  against  the  sin  of 
intemperance  promulgated  by  synods,  councils, 
bishops  and  aboots,  when  the  church  of  Rome 
bore  undisputed  sway  over  England,  Ireland  and 
Scotland.  In  A.  D.  569,  the  bishops  of  the 
ancient  Britons  in  synod  assembled  by  St.  David, 
enacted  the  following  canons :  1.  "  Priests  about 
to  mini: :  or  and  drinking  wine  or  strong  drink 
(to  ex'je-s),  through  negligence  and  not  ignor- 
ance, iru^i  do  penance  three  days.  If  they  have 
been  warned  and  despise,  then  forty  days.      2. 


I 


i     .f 


'  Ancient  Laws  of  the  Burghs  of  Scotland  (Innes),  pp.  IS, 
129, 163  ;  Discipline  of  Drink,  pp.  120,  121. 


38 


Historical. 


fj 


Those  who  get  drunk  through  ignorance  mnst  do 
penance  fifteen  days ;  if  throu^";]!  negligence,  fort/ 
days;  if  tlirougli  contempt,  -tr'^f*  quarantains. 
3.  He  wlio  forces  another  to  jv  Irunk  out  of 
hospitality  must  do  penance,  as  it  l;e  had  got 
drunk  himself.  4.  But  he  who  out  of  hatred  or 
wickedness,  in  order  to  disgrace  or  mock  at  others, 
forces  them  to  get  drunk,  if  he  has  not  already 
sufficiently  done  penance,  must  do  penance  as  a 
murderer  of  souls."  A  monastic  law  of  St.  Gil- 
das,  was  that  "  if  any  monk,  through  drinking 
too  freely,  gets  thick  of  speech,  so  that  he  cannot 
join  in  the  psalmody,  he  is  to  be  deprived  of  his 
supper." ' 

In  the  Irish  church,  St.  Cummian  Fota  laid 
down  the  following  rules:  1.  "If  a  bishop  or 
any  one  ordained  has  a  habit  of  drunkenness,  he 
must  resign  or  be  deposed.  2.  If  a  monk  drink 
till  he  vomits,  he  must  do  thirty  days'  penance ; 
if  a  priest  or  deacon,  forty  days.  '  But  if  this 
happens  through  weakness  of  stomach,  or  from 
long  abstinence,  and  he  was  not  in  the  habit  of 
eating  or  drinking  to  excess,  or  if  he  did  it 
in  excess  of  joy  on  Christmas  or  Easter,  or 
some  saint's  day,  and  if  he  then  did  not  take 
more  than  the  regulated  amount,  he  is  not  to  be 
punished.  3.  If  a  Christian  layman  vomit 
through    drunkenness,  let  him  do  fifteen  days' 


Bridgett's  Discipline  of  Drink,  pp.  134,  135. 


Historical. 


39 


penance.  4.  If  a  priest  gets  drunk  through  in- 
advertence, he  must  do  penance  seven  days ;  if 
through  carelessness,  fifteen ;  if  through  con- 
tempt, forty  ;  a  deacon  or  a  monk,  four  weeks ; 
a  sub-deacon,  three  ;  a  hiyman,  one  week.  5.  He 
who  compels  another  to  get  drunk  out  of  evil 
hospitality  must  do  penance  as  if  he  himself  had 
been  drunk  ;  if  he  did  it  out  of  hate  he  must  be 
judged  as  a  homicide."  * 

The  Anglo-Saxon  church  was  equally  desirous 
of  restraining  this  vice.  At  Clovesno  at  a  coun- 
cil of  the  bishops  of  the  province  of  Canterbury, 
it  was  directed  (among  other  things),  that  no 
man  should  drink  before  ten  o'clock,  if  not  com- 
pelled by  infirmity.  For  occasional  intemper- 
ance, a  layman  had  to  do  four  or  seven  days'  pen- 
ance ;  clerks  in  minor  orders,  seven  or  fourteen  ; 
sub-deacons,  two  or  three  weeks ;  deacons,  three 
or  four  weeks ;  priests,  four  or  five,  and  bishops, 
five  or  six.  Under  St.  Dunstan,  it  was  ordered 
that  no  drinking  should  be  allowed  in  the  church. 
Shortly  after  (A.  D.  970)  a  canon  was  passed  for- 
bidding priests  to  drink  in  taverns  like  laymen  ; 
and  another  against  priests  attending  wakes,  "  ex- 
ulting c  ver  dead  men  or  seeking  a  corpse."  '"' 

The  Fourth  Lateran  Council  (A.  D.  1215) 
decreed  that  all  the  clergy  should  carefully  ab- 


'  Idem.  pp.  141,142. 

»  Discipline  of  Drink,  pp.  148, 149, 150. 


1 


wmmm^^m 


40 


Historical. 


stain  from  gluttony  and  drunkenness;  and  this 
law  was  enforced  by  the  synods  and  councils  of 
England.  The  clergy,  both  there  and  in  Ireland, 
were  strictly  forbidden  to  frequent  taverns,  and 
to  attend  scot-ales  —  meetin^^;.'  where  each  paid 
for  his  own  share  of  the  drink.' 

Up  to  the  period  of  the  ReTonni  :ion  there  was 
no  civil  legislation  whatsoever  in  England  against 
drunkenness.  It  is  a  crime  not  mentioned  in  the 
statute  book  until  the  fifth  year  of  Edward  YI. 
Up  to  that  date,  although  the  church  was  —  as 
has  just  been  seen  —  very  busy  trying  to  arrest 
the  progress  of  intemperance,  the  action  of  the 
s^fito  was  confined  to  the  procuring  of  a  supply 
of  good  and  wholesome  liquor  to  be  sold  at  a 
moderate  price.'  The  regulation  of  ale-houses 
and  victualing-houses  in  England  claimed  the 
attention  of  the  government  at  a  very  early  day, 
and  lonij  before  the  art  of  distillation  was  known 
there.  The  manufacture  of  ale  was  mentioned 
in  the  laws  of  Ina,  king  of  Wessex,  and  in  728 
booths  wherein  to  sell  it  were  erected,  and  laws 
passed  for  their  regulation.  In  tlie  latter  part 
of  the  tenth  century  King  Edgar  put  down  all 
ale-houses,  except  one  in  each  borough  or  small 
town.  The  Norman  kings  regulated  the  prices 
of  ale,  and  by  statute  in  1272,  it  was  ordered 
that  a  brewer  should  sell  two  gallons  of  ale  for 


'  Idem,  p.  180. 


'•Tdem,  pp.  119, 129. 


Historical. 


41 


one  penny  in  cities,  and  tliiee  or  four  for  that 
price  in  the  country.  An  edict  of  Henry  VIII 
forbade  the  mixing  of  hops  or  sulpliur  with  beer ; 
but  little  attention  seeins  to  have  been  paid  to  the 
law,  for  in  1552  hop  plantations  were  formed.  In 
the  fifth  year  of  Edward  VI  privileges  were 
granted  to  those  hop  grounds,  and  the  poet 
Tusser  thus  sans:  *. 

The  hop  for  his  profit  I  thus  do  exalt, 
It  strengtheneth  beer  and  flavoreth  malt ; 
And  being  well  brewed,  long  kept  it  will  last. 
And  drawing  abide,  if  you  draw  not  too  fast. 


fi 


'i  f 


h 


Hops  came  into  common  use  in  Elizabeth's 
reign.  In  1649  the  city  of  London  petitioned 
Parliament  against ''  hoppers"  being  used,  urging 
that  "this  wicked  weed  would  spoil  the  drink 
and  endanger  the  lives  of  the  people." 

During  the  reign  of  the  last  Edward,  and  sub- 
sequently, many  statutes  were  framed  with  the 
intention  of  punishing  and  preventing  drunken- 
ness. In  1552  power  was  given  to  justices  of 
the  peace  to  abolish  ale-houses,  and  it  was 
ordered  that  none  should  be  opened  without 
license.'  Two  years  later  an  act  was  passed  re- 
quiring taverns  for  the  sale  of  wine  to  be 
licensed,  and  limiting  the  number  of  such  houses 
in  the  different  cities  (forty  were  given  to   Lon- 


M 


.1 


>  5  Edw.  VI.  ch.  25. 


l.lSf 


42 


Historical. 


iiiiiiii 


gi  !  I 


don) ;  a  price  was  lixed  for  the  wine,  and  none 
was  allowed  to  be  sold  to  be  drunk  on  the 
premises.  It  was  further  enacted,  "  that  it  should 
not  be  lawful  to  any' person,  except  he  should  dis- 
pend  in  lands,  tenements,  hereditaments,  or  other 
yearly  profits  certain,  the  sum  of  100  marks,  or 
else  he  be  worth  of  his  own  proper  goods  and 
chattels  1,000  marks,  or  shall  be  the  son  of  a 
duke,  earl,  viscount  or  baron  of  the  realm,  to 
have  or  keep  in  his  house  or  custody  any  piece 
or  vessel  of  any  of  the  wines  of  Gascoign,  Guyen, 
French  or  Kochel  wines  containing  above  the 
quantity  of  ten  gallons,  to  the  intent  to  spend  or 
drink  the  same  in  his  house,  by  any  color  or 
means." '  In  Elizabeth's  days  the  ale  drinkers 
had  single  beer  and  double  beer,  and  double 
double  beer,  dagger  ale,  a  kind  called  huff-cap, 
mad  dog,  angels'  food,  dragons'  milk ;  these  they 
drank  until  they  were  "  as  red  as  cocks  and  little 
wiser  than  their  combs."  ''  No  wonder  Shakes- 
peare wro*"e ;  "  In  England,"  said  lago,  "  they 
are  most  potent  in  potting.  Your  Dane,  your 
German,  and  your  swag-bellied  Hollander  are 
nothing  to  your  English."  '  A  little  later  another 
writer  thus  speaks :  ''  We  seem  to  be  steeped  in 
liquors,  or  to  be  the  dizzy  island.     We  drink  as 


»  Discipline  of  Drink,  p.  186. 

"  Idem,  p.  188. 

'  Othello,  act  II.  sc.  III. 


HiSTORlOAL. 


43 


if  we  were  nothing  but  sponges,  or  had  tunnels 
in  our  mouths  ;  we  are  the  grape-suckers  of  the 
earth.'" 

By  1  James  I,  ch.  9  (1604),  it  was  provided 
that  only  travelers  and  their  friends,  laborers  (at 
the  dinner  hour)  or  lodgers  should  receive  enter- 
tainment at  the  inns  and  ale-houses,  which,  accord- 
ing to  the  act,  were  intended  for  the  relief  and 
lodging  of  wayfarers,  and  for  the  supply  of  the 
wants  of  such  people  as  are  not  able,  by  greater 
quantities  to  make  their  provision  of  victuals; 
and  not  meant  for  entertainment  and  harbouring 
of  lewd  and  idle  people,  to  spend  and  consume 
their  money  and  their  time  in  lewd  and  drunken 
manner.  By  subsequent  statutes,  passed  in  the 
reign  of  this  wise  king,"  after  reciting  that  "the 
loathsome  and  odious  sin  of  drunkenness  had 
of  late  grown  into  common  use  within  the  realm, 
being  the  root  and  foundation  of  many  other 
enormous  sins,  as  bloodshed,  stabbing,  murder, 
swearing,  fornication,  adultery  and  such  like," 
drunkenness  was  declared  an  offence  against  the 
public,  and  punished  by  a  line  of  live  f.hillings 
to  be  paid  within  one  week  after  conviction, 
to  the  church-wardens  for  the  use  of  the  poor ; 
in  default  of  payment  the  guilty  party  was 
placed  for  six  hours  in  the  stocks,  in  which  time 


,J 


.;   I 


'11 


■n 

'?4 


'      l 


.1 

f 


i 


M, 


•  Reeve's  Plea  for  Nineveh. 

*  4  James  I,  ch.  5  ;  31  James  I,  ch.  7. 


i.i.' 


■S:i 


I 


44 


Historical. 


the  statute  presumed  the  offender  would  have  re- 
covered his  senses  and  not  be  liable  to  do  mischief 
to  his  neighbors.  Upon  a  second  conviction  the 
transgressor  was  bound  with  two  sureties,  in 
the  sum  of  £10,  to  keep  good  behavior.  Tippling 
in  ale-houses,  except  as  allowed  by  the  act  of  1604, 
was  punislied  by  a  fine  of  three  shillings. 

Chancellor  Walworth  says :  The  statutes  of  5 
and  6  Edward  YI,  ch.  25 ;  1  James  I,  ch.  9 ;  4 
James  I,  ch.  5 ;  21  James  I,  ch.  7,  and  1  Charles  I, 
ch.  4,  which  were  passed  to  regulate  ale-houses  and 
tippling-houses,  all  related  merely  to  the  retailing 
of  ale,  beer,  wine,  ardent  spirits  and  other  intox- 
icating beverages  sold  at  such  houses  to  be  drank 
therein,  and  not  to  the  manufacture  or  sale  of 
such  liquors  to  be  used  elsewhere.  Nor  was  there 
any  revenue  or  excise  duty  raised  upon  the  grant- 
ing of  licenses  to  such  houses.  Those  regulations 
and  restrictions,  however,  applied  to  the  sale  of 
every  kind  of  intoxicating  beverages  which  was 
sold  at  such  taverns  or  tippling-houses.  But  so 
far  as  related  to  the  making  or  vending  of  ale 
or  beer  generally,  there  was  no  restriction.  Nor 
was  there  any  duty  imposed  thereon  until  about 
the  middle  of  the  seventeenth  century.  Both 
before  and  since  that  time  there  were  not  only 
common  brewers,  who  made  such  liquors  for  sale 
to  others,  but  many  of  the  inhabitants  had  brew- 
ing materials,  and  manufactured  the  liquor  for 
their  own  consumption.     Morewood  says  it  is  a 


Historical. 


45 


common  practice  in  Staffordshire,  Sliropshirc  and 
Warwickshire,  as  well  as  in  the  Midland  counties, 
for  women  to  brew ;  that  many  of  them  follow  it 
as  a  livelihood,  going  from  house  to  house  as  the 
wants  or  calls  of  the  victuallers  require  ;  that  this 
has  been  the  practice  for  centuries;  hence  the 
term  ale-wives  as  recorded  in  some  of  the  old 
statutes.'  The  term  as  used  in  an  early  statute 
of  Massachusetts  did  not  refer  to  this  class  of 
brewing  dames,  but  to  their  namesakes  the  her- 
ring, who  probably  derived  their  cognomen  either 
from  the  redness  of  their  gills,  or  from  their 
attachment  to  ale  or  strong  beer.  Most  likely 
the  latter,  for  I  see  by  a  statute  passed  in  the 
time  of  Cromwell,"  that  this  intoxicating  bever- 
age has  sometimes  been  used  for  the  enticement 
of  herring  and  some  other  fish  into  difficulty,  as 
well  as  men  and  monkeys 

In  1643  a  tax  was  laid  for  one  year  upon  ale 
and  beer  brewed  by  a  common  brewer,  or  by  any 
private  person  who  should  sell  or  tap  out  such 
ale  or  beer,  ei^^^her  publicly  or  privately ;  vhich 
tax  upon  home-manufactured  articles  was  called 
by  the  new  name  of  excise,  as  the  duty  upon  the 
importation  of  articles  from  abroad  was  called  an 
impost.  This  excise  was  continued  from  time  to 
time  by  the  Cromwellian  Parliaments  until  the 
statute  of  1656,  chapter  19,  before  referred  to; 


A- 


'  Morewood.  543. 


<  Scobell's  Stat.  468. 


:'m 


Wi 


1 .. 


1 


A6 


Historical. 


which  appears  to  have  been  unlimited  and  to 
have  continued  in  force  until  the  Restoiation. 
By  that  statute  (the  general  jn'inciples  of  uhich 
seem  to  have  been  afterward  adhered  to  in  Eng- 
land), a  distinction  was  made  between  ale  or  bei  r 
of  a  particular  strength  and  value, — subsequently 
called  strong-beer  or  porter, — and  beer  of  a  less 
value  which  assumed  the  name  of  small  or  table 
beer ;  both  of  which,  however,  were  strong  and 
intoxicating  liquors.  The  excise  upon  the  one, 
when  brewed  by  a  common  bi'ewer,  or  by  any 
other  person  for  sale,  was  fixed  at  two  and  six 
j)ence,  and  ujx)n  the  other  at  six  pence  the  barrel ; 
and  in  the  same  proportion  for  a  greater  or  less 
quantity.  In  the  same  statute  an  excise  duty 
of  two  pence  a  gallon  was  imposed  upon  aqua 
vitae,  or  strong  waters,  distilled  within  the  com- 
monwealth. A  duty  of  two  and  six  pence  the 
hogshead  was  also  imposed  upon  cider  and  perry 
made  and  sold  by  retail ;  and  a  penny  a  gallon 
upon  mead  and  metheglin  and  such  like  drinks 
thus  made  and  sold.  And  the  act  concludes 
with  a  proviso,  before  alluded  to,  that  the  excise 
duty  thereby  imposed  shall  not  extend  to  salt 
used  in  salting  herrings,  etc.,  or  to  beer  used  for 
taking  thera.^ 

Immediately  after  the  Restoration  the  same  ex- 
cise duty  was  granted  to  Charles  the  Second  and 

>  Scob.  Stat.  452. 


IIlSTOUICAL. 


47 


his  successors ;  and  tliis  excise  tax  was  fanned  out 
during  his  life.'  After  liis  death  the  excise  duty 
was  continued  to  liis  successors  witli  various  mod- 
ifications from  time  to  time  until  1830,  when 
the  excise  upon  cider  and  perry  was  abolished. 
The  excise  duty  upon  all  the  other  intoxicating 
b  3rage8  manufactured  for  sale,  including  mead 
metheglin,  still  continues  in  England.  At 
the  union  in  1707,  the  excise  duties  on  beer,  etc., 
were  extended  to  Scotland,  and  a  malt  liquor  of 
intermediate  strength,  in  use  there,  called  two- 
penny ale,  was  also  provided  for. 

The  first  colonial  act  for  laying  an  excise  on  all 
sti'ong  liquors  retailed  in  this  colony  (New  York) 
was  passed  in  October,  1713.  In  1709  an  act 
had  been  passed  for  laying  an  'excise  on  all 
liquors,  retailed,  for  one  year ;  this  had  been  con- 
tinued. The  act  of  1713  placed  excise  on  all 
strong  liquors,  beer  and  cider  only  excepted. 
Beer  and  cider  are  thus  classed  as  strong  liquors. 
The  revision  of  this  act  in  1788  uses  the  words 
"  spirituous  liquors  "  as  well  as  "  strong  liquors." 
The  term  "  strong  waters "  used  in  Cromwell's 
statute  and  in  26  Geo.  II,  ch.  31,  was  a  technical 
term  used  in  the  same  sense  as  aqua  viiw  to 
designate  the  clear  and  colorless  fluid,  resembling 
liquid  water  produced  by  distillation  only. 
Entirely   different    from    the    "strong    drink" 

■  Stat.  13  Charlefl  II,  ch.  8. 


; 


I 
m 


J  ft 

■ ;- '  ■. 


1 1 


:] 


?•    ■!•  BF.' 


ttij 


Ill 


>.  m 


I 


■«  ;i 


48 


Historical. 


spoken  of  in  James'  version  of  the  Bible,  or  the 
"  strong  liquor  "  of  the  act  of  1713.' 

The  habit  of  gin-drinking,  the  master- curse  of 
English  life,*  to  which  most  of  the  crime  and  an 
immense  proportion  of  the  misery  of  the  nation 
may  be  ascribed,  if  it  did  not  absolutely  originate, 
at  least  became,  for  the  first  time;  a  national  vice, 
in  the  early  Hanoverian  period.  Drunkenness, 
it  is  true,  had  long  been  common ;  but  the  dissi- 
pated habits  of  the  Restoration,  and  especially 
the  growing  custom  of  drinking  toasts,  greatly 
increased  the  evil.  Among  the  poor  in  the  begin- 
ning of  the  eighteenth  century  the  popular  bever- 
age was  still  ale  or  beer.  In  1689  the  importa- 
tion of  spirits  was  prohibited,  and  the  trade  of 
distilling,  on  payment  of  certain  duties,  was  thrown 
open  to  all  English  subjects.  These  tneasures  laid 
the  foundation  of  the  great  extension  of  the  Eng- 
lish manufacture  of  spirits ;  but  it  was  not  imtil 
1724  that  the  passion  for  gin-drinking  appears  to 
have  affected  the  masses,  and  then  it  spread  with 
the  rapidity  and  violence  of  an  epidemic.  As 
Lecky  says,  small  as  is  tlie  place  which  this  fact 
occupies  in  English  history,  it  was  probably  the 
most  momentous  in  that  of  the  eighteenth  cen- 
tury, incomparably  more  so  than  any  event  in 
the  purely  political  or  military  annals  of  the 

'  Nevin  v.  Ladue,  3  Deiiio,  437. 

9  Led  7'8  England  in  XVII 1  Century,  pp.  516-532. 


Historical. 


49 


country.  The  increase  in  tlie  quantity  yearly 
distilled  was  treni^^ndous;  while  half  a  million 
gallons  of  spirits  was  about  all  that  was  made  in 
1684,  in  1714  at  least  two  millions  were  distilled, 
in  1727  it  had  risen  to  over  three  and  a  half  mil- 
lions, and  in  1735  to  5,394,000  gallons.  "  Drunk 
for  a  penny,  dead  drunk  for  two  pence,  clean  straw 
for  nothing ; "  was  the  common  advertisement 
of  retailers  of  gin.  To  stay  this  frightful  plague, 
in  1736,  Sir  J.  Jekyll  brought  in  and  carried  a 
measure  through  Parliament  imposing  a  duty  of 
twenty  shillings  a  gallon  on  all  spirituous  liquors, 
and  prohibiting  their  sale  in  less  quantities  than 
two  gallons  without  paying  a  tax  of  £50  a  year.  * 
This,  if  it  could  have  been  enforced,  would  have 
amounted  almost  to  prohibition,  but  it  was  too 
late  to  stem  the  torrent  of  drink  by  an  act  of 
Parliament.  "Violent  riotp  ensued.  In  1737  the 
consumption  sank  to  what  it  had  been  ten  years 
before ;  but  a  clandestine  retail  trade  soon  sprang 
up,  which,  being  at  once  very  lucrative  and  very 
popular,  increased  so  that  it  was  found  impossible 
to  restrain  it.  In  1742  more  than  seven  million 
gallons  were  distilled,  and  the  consumption  was 
steadily  augmenting.  In  1743  an  attempt  was 
made  to  suppiess  the  illicit  trade  and  at  the 
same  time  to  increase  the  revenue  by  a  bill ' 
lowering  the  duties  on  most  spirits  to  one  penny 


m 


3  I 


i 

k 


Ml 


i. 


>; 


'  9  Geo.  II,  ch. 


«  16  Geo.  II,  ch,  8. 


60 


HiSTOKICAL. 


■a     !' 


i: 


i:i  i 


on  the  gallon,  levied  at  tlie  still-head,  and  reduc- 
ing the  price  of  retail  licenses  to  twenty  shillings. 
This  act  did  nothing  to  discourage  drunkenness 
or  smuggling.  Crime  and  immorality  of  every 
description  rapidly  increased.  It  was  computed 
that  in  1750  and  1751  more  than  eleven  millions 
of  gallons  of  spirits  were  each  year  consumed, 
and  the  increase  of  population,  especially  in 
London,  appears  to  have  been  perceptibly  checked. 
In  1751,  i^owever,  some  new  and  stringent  meas- 
ures were  carried  under  the  Pelham  ministry, 
which  liad  real  and  very  considerable  effect.' 
Distillers  were  prohibited  under  a  penalty  of  £10 
from  either  retailing  spirituous  liquors  themselves, 
or  selling  them  to  unlicensed  retailers.  Debts 
contracted  for  liquors,  not  amounting  to  twenty 
shillings  at  a  time,  were  made  irrecoverable  at 
law.  Retail  licenses  were  conceded  only  to  £10 
householders  within  the  bills  of  mortality,  and 
to  traders  who  were  subject  to  certain  parochial 
rates  without  them;  and  the  penalties  for  un- 
licensed selling  were  greatly  increased.  For  the 
second  offence  the  unlawful  dealer  was  liable  to 
three  months'  imprisonment  and  to  whipping ; 
for  the  third,  he  incurred  the  penalty  of  trans- 
portation. 

Two  years  later  another  useful  law  was  carried, 
restricting  the  liberty  of  magistrates  in  issuing 


•  24  Geo.  II,  ch.  40. 


Historical. 


51 


licenses,  and  subjecting  public  houses  to  severe 
regulations. '  Though  much  less  ambitious  than 
the  act  of  1786,  these  measures  were  far  more 
efficacious,  and  they  form  a  striking  instance  of 
the  manner  in  which  legislation,  if  not  over- 
strained, or  ill-timed,  can  improve  the  morals  of 
the  people.  Still  these  laws  formed  a  palliation 
and  not  a  cure,  and  from  the  early  years  of  the 
eighteenth  century  gin-drinking  has  never  ceased 
to  be,  in  England,  the  main  counteracting  in- 
fluence to  the  moral,  intellectual  and  physical 
benefits  that  might  be  expected  from  increased 
commercial  prosperity." 


\  - 

if 
( 

i 


'A 


;| 


'  26  Geo.  II,  ch.  13 

*  Lecky's  History  of  England  in  the  Eighteenth  Century, 
p.  522. 


m 


•I 


■'H 


IT 


i>:    ) 


III! 


I 


62 


Drunkenness,  Dipsomania, 


CHAPTER  III. 

DRUNKENNESS,  DIPSOMANIA, 
DELIRIUM  TREMENS. 


Drunkenness,  in  its  ordinary  signification,  is 
that  state  of  the  body  and  mind  which  is  produced 
by  the  too  great  use  of  alcoholic  liquors.  In  a 
word,  it  is  alcoholic  poisoning. 

The  sages  of  the  law  do  not  appear  to  have 
ever  strictly  defined  it. 

If  the  potations  have  been  deep  or  strong  the 
effects  may  be  evident  in  two  or  three  minutes ; 
if  the  quantity  or  strength  of  the  alcoholic  liquid 
taken  in  has  been  inconsiderable,  the  symptoms 
of  intoxication  may  not  appear  for  more  than  an 
hour.  The  first  effect  of  this  fiery  substance  is 
generally  a  diffused  glow,  spreading  throughout 
the  whole  body  as  from  a  central  heat ;  a  com- 
fortable feeling  of  self-satisfaction  accompanies 
this,  and  is  reflected  upon  the  world  at  large, 
every  thing  is  couleiir  de  rose  /  even  to  the  man 
habitually  sad  and  downcast  —  of  vinegar  aspect 
—  the  world  begins  to  blossom  as  the  rose,  and 
to  appear  not  such  a  bad  place  after  all.  The 
brain   works   more  rapidly  as   the   pulse   beats 


Delirium  Tremens. 


53 


quicker ;  but  rapidity  of  thought  does  not  always 
imply  clearness  of  mental  vision ;  soon  there  is 
a  slight  confusion  in  the  upper  story,  and  the 
windows  of  the  mind  become  darkened.  The 
joyousness  and  mirth  continue ;  the  spirit  is 
buoyant ;  all  is  light  and  bright ;  the  victim  is 
talkative,  and  like  Bunyan's  gentleman  of  that 
name,  will  converse  with  equal  fluency  on  any 
subject.  He  sings  too,  for  as  the  Nubians  say 
alcohol  is  "the  mother  of  nightingales."  But 
after  a  time  the  tongue  trips,  the  words  slip, 
stumble,  tumble.  The  speech  stammers  and  soon 
becomes  indistinct.  The  man  feels  giddy  ;  thinks 
the  world  is  spinning  round  too  fast,  wishes  that 
Ptolemy  was  right  and  Copernicus  wrong ;  sees 
double.  There  are  abrupt,  almost  unconscious, 
jerkings  and  movements  of  the  limbs.  His 
articulation  being  indistinct,  he  endeavors  to 
remedy  the  defect  by  pitching  his  voice  in  a 
higher  key.  According  to  his  natural  constitu- 
tion, he  becomes  irritable  and  bellicose,  or  friendly 
and  amorous.  In  many  the  "  softer  flame,"  of 
Bums,  burns  not  brighter,  but  stronger  and 
more  vividly  when  fed  by  fiery  alcohol.  Now, 
there  is  a  thorough  want  of  connection  between 
the  impressions  conveyed  to  his  fevered  brain, 
and  those  received  by  his  tingling  nerves.  He 
sees  his  glass  or  bottle,  grasps  at  it,  misses  it,  or 
spills   its   contents,   perhaps   stumbles,  possibly 


F 


i 
1 


m 


it 


! 


Ill 


I 


li 


i'i 


!     I 


54 


Dkunkenness,  Dipsomania, 


falls.  He  no  longer  knows  what  he  does ;  nor 
does  what  he  wishes ;  sometimes  even  he  "  tip- 
ples imaginary  pots  of  ale." 

At  length  the  tongue,  at  first  quick,  then 
stammering,  next  slow,  becomes  still  and  dumb ; 
the  torrent  of  his  words,  dammed  up  by  the  fatal 
liquor,  altogether  ceases ;  he  is  no  longer  master  oi 
his  mind  or  body,  but  is  fast  bound  by  the  chains 
of  his  subtle  enemy  in  body  and  soul.  Insensi- 
bility, a  sort  of  hideous  sleep,  full  of  foul  dreams 
and  horrid  nightmares  succeeds.  The  countenance 
is  bloated  and  suffused,  the  eye  is  turned  in,  the 
pupil  dilated,  fixed,  lustrous,  the  lips  are  livid,  the 
breathing  becomes  hard  and  stertorous.  A  man 
may  sleep  off  his  drunkenness,  or  he  may  cast  off 
part  of  the  poison  by  vomiting  before  it  is  absorbed 
into  his  system.  Sometimes  he  fails  to  do  either, 
and  the  poison  does  its  perfect  work,  and  instead 
of  sleep  its  twin  brother  death  comes  on,  and 
as  its  dread  shadow  falls  over  the  wretched  drunk- 
ard, its  approach  is  shown  by  a  pallid  face,  cold 
beads  of  perspiration  at  every  pore,  a  pulse 
quickly  but  feebly  quivering,  and  a  relaxing  of 
all  the  muscles.' 

1,'lie  ancient  fable  tells  us  that  when,  after  leav^- 
ing  the  ark,  Noah  planted  the  vine  he  killed  a 
sheep,  a  lion,  an  ape  and  a  sow,  and,  having 
mingled  their  blood  together,  poured  it  upon  the 

'  Browne's  Medical  Jurisprudence  of  Insanity,  in  situ. 


Deliiuum  Tremens. 


65 


plant,  which  tlieii  absorbed  into  itself  the  natures 
of  these  different  animals;  so  that  ever  after  the 
nse  of  the  fruit  of  the  vine  has  given  to  the 
drinker  in  succession  — the  stupidity  of  the  sheep, 
the  boldness  of  the  lion,  the  nonsensical  noisi- 
ness of  the  ape,  and  the  filthy  brutish ness  of  tiie 
sow.  George  Gascoigne,  in  his  "  Delicate  Diet 
for  Daintie  Mouthde  Dronkardes,"  says  :  "  All 
dronkurdes  are  beasts;"  and  graphically  he  de- 
scribes the  ape-drunk,  the  lion-drunk,  the  swine- 
drunk,  the  sheep-drunk,  the  maudlen-drunk,  the 
martin-drunk,  the  goat-drunk,  and  the  fox-drunk. 
Browne,  in  the  work  on  "  The  Medical  Juris- 
prudence of  Insanity,"  arranges  all  drunkards  in 
one  or  other  of  the  following  classes :  First.  The 
Accidental ;  as  children  who,  unconscious  of  the 
effects  of  alcoholic  liquors,  drink  to  excess ;  and 
men  led  away  by  joy,  by  friends,  by  physical 
feelings,  and  unintentionally  drinking  to  excess. 
Second.  The  Regular;  he  who  gets  inebriated 
whenever  it  suits  him,  at  stated,  regular  times 
and  seasons.  He  is  a  sane  drunkard ;  his  passion 
is  under  control,  but  when  he  will  he  throws  the 
rein  on  its  neck  and  lets  it  go.  When  he  chooses 
he  can  refuse  to  look  '  upon  the  wine  when  it  is 
red,  when  it  giveth  his  color  to  the  cup,  when  it 
moveth  itself  aright ; '  and  he  does  refuse  when 
he  thinks  the  sei-pent's  bite  and  the  adder's  sting 
will  be  too  shai'p  and  venomous  for  his  present 
purpose  ;  but  at  other  times  he  cares  not  for  woe 


t 


I:  fi 


)f 


I 


ft    il' 


56 


Drunkenness,  Dipsomania, 


or  sorrow,  contentions  or  babblings,  wounds  or 
redness  of  ejes.  Third.  The  Tippler;  one  al- 
most, but  not  altogether,  a  drunkard  ;  one  ever 
drinking,  but  never  drunk.  He  oftener  obtrudes 
his  soaked  and  spirit- logged  body  upon  the  phy- 
sician than  his  deeds  upon  the  lawyer.  He  agrees 
not  with  the  Japanese  maxim,  '  to  drink  seldom, 
but  heartily  when  at  it,  is  better  than  to  tipple 
frequently  and  in  small  quantities.'  Fourth. 
The  Habitual.  Tlu'ough  repeated  indulgences 
the  habit  to  indulge  becomes  stronger,  the  bodily 
crnving  grows  in  strength  and  other  motives  lose 
their  weight.  In  this  way  the  moml  sense  be- 
comes obscured,  the  self-respect  and  the  self-re- 
straint which  dej^end  so  much  upon  the  moral 
estimate  of  one's  worth  are  no  longer  guiding 
principles  of  life ;  the  man  has  become  the  slave 
of  an  artificial  appetite,  and  is  no  longer  the  free 
ruler  of  his  owii  conduct.  His  organism  rules 
over  him,  and  the  rule  is  not  that  of  a  constitu- 
tional monarch  who  is  governing  in  conformity 
with  the  laws  of  health,  but  the  tyranny  of  a 
despot  who  is  ruling  with  the  caprice  of  disease. 
Here  we  pass  from  habitual  drunkenness  to  dipso- 
mania. Dr.  Crichton  Browne  says,  '  The  essential 
distinction  appears  to  me  to  be  that  in  habitual 
di'unkenness  the  indulgence  of  the  propensity  is 
voluntary,  and  may  be  foregone,  and  in  dipsa 
mania  it  is  not  so.  The  drunkard,  as  a  rule, 
urges  some   external   excuse    for    his   debauch, 


Delirium  Tremens. 


57 


i 


whereas  v/ith  the  dipsomaniac  it  is  the  internal 
eravinff.  With  the  dipsomaniac  it  is  the  vis  a 
tergo^  with  the  drunkard  it  is  the  ms  a  f route. 
The  dipsomaniac  is  driven  into  the  debauch  by 
an  impulse ;  the  drunkard  seeks  the  intoxicating 
effects.' 

Mania  a  potu  is  very  often  confounded  with, 
but  is  really  to  be  scientifically  distinguished 
from,  drunkenness.  It  is  not  in  fact  drunkenness 
at  all,  but  it  is  the  maniacal  excitement  which 
sometimes  comes  on  as  intoxication  is  passing 
off.  It  must  also  be  distinguished  from  delirium 
tremens.  It  is  independent  of  any  constitu- 
tional habit,  and  may  occur  in  a  person  who  has 
never  habitually  taken  intoxicating  beverages. 
The  symptoms  of  most  value  in  a  differential 
diagnosis  between  mania  d  jpotu  and  delirium, 
tremens  are,  perhaps,  these,  that  while  the  former 
continues  from  one  to  two  weeks,  the  latter 
terminates  in  about  eight  days.  The  delusions 
characteristic  of  the  one  disease  are  also  found  in 
connection  with  the  other. 

Delirium,  tremens  is  a  disease  which  owes  its 
origin  to  constitutional  habit.  It  is  a  disease  of 
the  habitual  drinker ;  it  is  also  the  portion  of  the 
tippler.  Abstinence  from  indulgence  in  stimu- 
lants is  not  unfrequently  the  proximate  cause  of 
this  attack ;  but  911  exhausting  disease,  or  a  severe 
injury,  following  upon  a  long  course  of  intemper- 


■i 


I 

Hi 


i'.l   i 


■'1^ 
\ 


1 1 


i 


58 


Drunkenness,  Dipsomania, 


ance,  1ms  been  found  to  lead  directly  to  delirium 
tremens. 

There  is  not  much  difficulty  in  distinguish- 
ing the  delirium  of  the  drunkard  from  ordi- 
nary delirium.  The  previous  history  of  the  case 
is  generally  sufficient  to  decide  the  matter ;  but 
there  are  many  characteristic  symptoms  which 
would  facilitate  a  decision  even  if  the  past  were 
unknown.  The  sufferer  is  sleepless,  restless, 
timid,  suspicious  and  cnnning.  He  is  subject  to 
illusions  of  the  senses,  and  they  in  most  cases  are 
productive  of  fear;  most  of  them  are  painfi\ 
hideous  or  disgusting.  The  individual  not  un- 
frequently  believes  himself  to  be  the  subject  of 
persecution.  If  he  hears  voices,  they  are  threat- 
ening, if  he  sees  visions,  they  are  loathsome.  In 
its  inception  the  disease  is  marked  by  a  slight 
tremor  of  the  hands,  and  in  so  far  as  these  organs 
are  concerned,  by  an  uncertainty  of  muscular  ac- 
tion. The  appetite  is  almost  always  impaired ; 
the  skin  is  pale,  cold  and  clammy ;  the  tongue 
moist,  white,  tremulous,  and  the  pulse  small  and 
weak.  The  delirium  which  supervenes  is  not 
constant,  and  is  frequently  found  to  come  on  at 
night.  After  a  time,  however,  there  are  no  re- 
missions in  the  delirium,  which  may  last  for 
three  or  four  days.  Recovery,  when  it  takes 
place,  comes  after  sleep,  which  is  at  first  uneasy 
and  only  enjoyed  in  snatches,  but  at  length  be- 
comes   quiet  and    refreshing.     "When   ordinary 


Delirium  Tremens. 


59 


sleep  does  not  come,  a  sounder  slumber  falls 
upon  the  sufferer ;  there  is  no  more  troubling, 
and  the  weary  one  is  at  rest. 

The  delirium  of  this  disease  bears  a  strong  re- 
semblance to  dreaming.  The  patient  is  anxious 
to  go  somewhere ;  he  must  rise ;  he  cannot  stay  in 
bed ;  he  will  be  too  late ;  it  is  nnkind  to  say,  '  lie 
still,'  he  must  go  —  or  something  must  be  done. 
He  will  cry  if  his  intention  is  thwarted,  although 
it  is  a  purposeless  intention,  a  road  without  a  goal. 
Almost  invariably  his  delusions  are  associated  with 
fear  and  suspicion.  Those  about  him  are  sus- 
pected of  many  nefarious  designs,  and  so  pain- 
fully does  the  fear  of  coming  evil  oppress  him 
that  attempts  to  escape  are  not  uncommon,  and 
the  patient,  with  a  view  of  ridding  himself  of 
the  horrors  which  torment  his  senses,  and  the 
unutterable  fear  which  torments  his  mind,  will 
endeavor  to  do  violence  to  himself  or  others. 
Many  cases  are  on  record  which  show  that  atro- 
cious crimes  have  been  committed  by  persons 
laboring  under  this  disease.' 


■■■) 


i\ 


i 


'4 


M 


n 


tn 

4 
'■II 


'  Browne's  Medical  Jurisprudence  of  Insanity,  insitu. 


fl 


d: 


! 


60 


Definitions. 


CHAPTER  lY. 


DEFINITIONS. 


A  MAN  may  truly  be  said  to  have  "  intemper- 
ate habits "  if  it  is  his  rule  to  drink  to  intoxica- 
tion whenever  occasion  offers,  and  sobriety  is  the 
exception  with  him.  It  is  not  necessary  that  he 
should  be  drunk  every  day  before  his  habits  can  be 
called  "  intemperate,"  nor  will  his  getting  drunk 
two  or  three  times  a  year  justify  the  use  of  such 
an  adjective  when  speaking  of  his  habits.' 

A  "  common  drunkard "  is  not  a  regular  tip- 
pler, but  one  who  is  frequently  drunk.  Proof 
that  one  was  drunk  six  times  on  six  different  days 
in  three  months,  when  there  was  no  evidence 
of  his  state  on  the  other  days,  does  not  entitle 
hira  to  the  presumption  that  he  was  sober  on  the 
other  days.  The  rule  of  law  is  that  people  and 
things  are  presumed  to  continue  in  statu  quo.'^ 

An  "habitual  drunkard"  is  one  who  has  the 
habit  of  indulging  in  intoxicating  drink  so  firmly 
fixed  that  he  becomes  drunk  whenever  the  tempta- 

'  Tatum  V.  State,  63  Ala.  147. 

2  Com.  V.  McNamee,  112  Mass.  285. 


If 


Definitions. 


61 


tion  is  presented  by  his  being  near  where  liquor 
is  sold. ' 

In  California,  a  jury  was  instructed  by  the 
judge  that  to  render  a  man  an  "  habitual  drunk- 
ard," the  "  intoxication  must  be  such  as  to  com- 
pletely disqualify  him  from  attending  to  his  busi- 
ness avocations."  But  the  court  held  that  that 
was  laying  down  the  rule  in  too  stringent  a  man- 
ner, and  that  if  there  is  a  fixed  habit  of  drinking 
to  excess  to  such  a  degree  as  to  disqualify  a  per- 
son from  attending  to  his  business  during  the 
principal  portion  of  the  time  usually  devoted  to 
business,  it  is  habitual  intemperance." 

The  Iowa  Supreme  Court  had  occasion,  on  an 
application  for  a  divorce  on  the  ground  of  habit- 
ual drunkenness,  to  consider  this  point  and  when 
refer  in":  to  the  Californian  case  remarked: 
•  This  definition  (the  one  in  Mahone  v.  Mahone) 
was  sufi^  ient  for  the  case  in  hand,  but  we  do  not 
UT'derstand  it  to  have  been  held  that  nothing 
>'■  iiort  of  the  standard  fixed  in  that  case  would  be. 
It  is  not  regarded  as  necessary  to  affirmatively 
define  what  constitutes  habitual  drunkenness. 
We  are  not  prepared  to  say,  however,  if  a  person 
has  a  fixed  habit  of  drinking  intoxicating  liquors 
to  excess,  is  frc  juently  drunk,  and  that  such  is 
his  condition  during  the  night  and  in  hours  not 


I 


i 


i 


i 


m 


'  Magahay  v.  Magahay,  35  Mich.  210. 
2  Mahone  v.  Mahone,  19  Cal.  627. 


'I 


m 

I;  -ii 


ill 

II 


I 


llll 


62 


Definitions. 


devoted  to  business,  that  his  wife  would  not  be 
entitled  to  a  divorce."  '  In  England,  "  habitual 
drunkenness  "  is  not  cruelty  in  the  eye  of  the  law 
(X.  B,  'Tis  strange  that  justice  should  be  blind 
and  law  a  Polyphemus)  so  to  entitle  a  wife  to 
divorce.' 

Drunkenness  is  a  species  of  insanity." 
One  cannot  be  said  to  be  "  in  the  habit  of  be- 
coming intoxicated,"  who  has  only  once  been  seen 
drunk  and  who  sometimes  takes  a  drink.*  The 
phrase,  "  addicted  to  the  excessive  use  of  intoxicat- 
ing liquors,"  means  not  the  occasional  excessive 
use,  but  the  habitual  excessive  use.'  A  court  being 
called  upon  to  define,  in  an  insurance  case,  what 
was  meant  by  saying  that  "  a  man  had  always  been 
sober  and  temperate,"  very  wisely  concluded  that 
such  a  thing  could  not  be  said  of  one  who,  al- 
though usually  sober  and  temperate  in  his  habits, 
jet  occasionally  indulges  in  drinking  debauches 
which  sometimes  end  in  delirium  tretnena.' 

To  say  that  a  man  is  "  intemperate  "  does  not 
necessarily  imply  that  he  is  in  the  habit  of  get- 

»  23  A.  L.  J.  66. 

8L.  R.,1P.  &M,  46. 

8  Duffield  V.  Robesen,  2  Harr.  375. 

•  Calder  v.  Sheppard,  61  Ind.  219. 

•  Mowry  V.  Home  Ins.  Co.,   1   Big.  Life  and  Ace.  Ins.  Co. 
Cas.  698. 

•  Mutual  Benefit  Life  Ins.  Co.  v.  Hotterhoff,  2  Cin.  Sup. 
Ct. 


Definitions. 


68 


ting  drunk.'  We  fancy,  however,  the  courts 
would  not  ho?d  the  converse  of  this. 

A  "  saloon-heeper  "  is  one  who  retails  cigars, 
liquors  et  hoc  genus  omneJ' 

A  "  keeper  "  ot  a  place  for  the  unlawful  sale  of 
liquor  is  not  only  th'^  owner  thereof,  but  any  one 
who  is  in  possess;  on  i\nd  control  of  the  place  and 
liquors,  and  managing  the  business.* 

In  England,  one  who  on  Sunday  walked  to  a 
spa  two  and  a  lialf  miles  away  from  his  home  for 
the  purpose  of  drinking  the  mineral  water  for  the 
benefit  of  his  health,  and  then  took  some  ale  at 
an  hotel  (to  keep  fbe  water  down  we  suppose) 
was  held  by  the  Coui't  of  Comn:on  Pleas  to  be  a 
"  traveler."  *  England  is  a  small  country ;  one 
cannot  go  far  in  any  direction  there  without  get- 
ting his  feet  damp,  like  Knute  and  his  friends. 
We  presume  this  is  why  what  would  here  be 
called  "  taking  a  stroll,"  is  there  dignified  by  the 
name  of  "traveling." 

In  considering  the  question  of  selling  liquor  to 
a  "  minor,"  the  court  held  that  the  fact  that  a 
youth  wore  a  beard  and  said  that  he  was  tweuty- 
one  was  no  proof  that  he  was  an  adult.*  The 
bench    doubtless   believed  that  although  every 

>  Mullinex  v.  People,  76  111.  211. 

3  Cahill  V.  Campbell,  105  Mass.  69. 

8  Schultz  V.  State,  32  Ohio  St.  276. 

*  Pepler  v.  Richardson,  L.  R.,  4  C.  P.  168. 

»  Geltz  V.  State,  41  Ind.  162. 


■  I 


i 

i 

4 


I'll 


i  "  it 

i 


64 


Definitions. 


American  boy  may  become  president,  still  every 
one  is  not  a  George  Washington  ;  but  that  as 
Mark  Twain  says :  "  Some  Americans  will  lie." 
As  to  beards,  nature  occasionally  "bursts  out 
with  a  chin-tuft "  before  her  time,  or  where  she 
should  not. 

On  a  trial  for  this  offence  (not  of  nature,  but 
of  selling  to  a  minor)  a  jury  must  not  look  at  the 
personal  appearance  as  to  age  of  the  alleged 
minor,  and  regard  such  inspection  (either  with  or 
without  other  evidence  of  age)  in  determining 
whether  or  not  the  defendant  acted  in  good  faith 
in  selling  the  liquor  and  believed  that  the  boy 
was  a  man.'  But  a  reasonable  and  honest  belief 
cii  the  part  of  the  dramseller  that  the  youth  was 
of  full  age  is  a  valid  defence.'' 

If  one  sells,  or  delivers,  intoxicating  beverages 
to  a  minor  for  the  use  of  his  parents  that  is  not 
within  the  meaning  of  the  law  forbidding  the  sale 
or  delivery  of  intoxicating  liquors  to  "minors;" 
at  least  not  in  Massachusetts.  For  the  mischief 
which  the  law  is  intended  to  prevent  is,  the  pos- 
session of  intoxicants  by  a  minor  for  his  own  use 
and  under  his  own  control,  and  the  case  must  fall 
strictly  within  the  words  of  the  statute  to  sustain 
an  action  or  prosecution.' 

'  Kiniger  v.  State,  53  Ind.  251. 
*  Robinson  v.  State,  63  Ind.  335. 

8  Cbm.  V.  Lattenville,  130  Mass.  385;   but  see  Ross  v. 
People,  17  Hun.  591 . 


Definitions. 


65 


A  youth  ceases  to  be  a  "  minor"  at  one  second 
past  midnight  on  the  morning  preceding  the 
twenty -lirst  anniversary  of  his  natal  day ;  the  law 
does  not  recognize  parts  of  a  day ;  De  minimis  non 
curat  lex.' 

Bergen  walked  up  to  Burnham's  bar  in  Massa- 
(diusetts,  accompanied  by  two  minors,  and  called 
for  drinks  for  the  three.  Each  of  the  boys  named 
his  liqu  .>r,  and  having  received  it,  took  it  without 
winking  (at  least  the  reporter  does  not  say  they 
did).  Bergen  paid  for  the  whole  party.  On  pro- 
ceedings being  taken  against  the  defendant,  Burn- 
ham,  for  selling  liquor  to  minors,  the  court  held 
that  he  had  not  done  so  ;  that  the  sale  was  to  the 
man  Bergen,  and  that  the  fact  of  the  boys  choos- 
ing their  own  drinks,  and  receiving  them  direct 
from  the  barkeeper,  did  not  alter  the  transac- 
tion.'' 

Judges  do  not  exactly  know  —  at  least  when 
on  the  bench  —  what  a  "  saloon  "  is.  They  say 
that  it  does  not  necessarily  import  a  place  to  sell 
liquors  ;  that  it  may  mean  a  ])lace  for  the  sale 
of  general  refreshments,^  or  that  it  may  mean  a- 
room  for  the  reception  of  company,  or  for  an  ex- 
hibition of  works  of  art,  etc.*  (This  latter  idea 
shows  how  high-toned  Texan  judges  are,  and  that 

'Parsons on  Contracts,  vol.  I,  p.  2.04. 

"^  St.  Goddard  v.  Burnhani,  124  Mass.  578. 

•' Kitson  V.  Mayor  of  Ann  Arbor,  26  Mich.  33.5.' 

*  Stato  V.  Mansker,  30  Tex.  304. 

5 


or* 


m 

it 

m 
4 

'  \ 


i  i 


I 


'\m 


r,o 


Definitions. 


they  have  traveled  in  foreign  parts.)  Neither  an 
inclosed  park  of  four  acres  in  extent,  nor  an  nn- 
incloseu  and  uncovered  platform,  erected  for  the 
votaries  of  the  Terpsichorean  art,  and  where  lager 
beer  is  sold,  can  rightly  be  considered  a  "saloon," 
or  a  "house,"  or  "  building,"  within  the  meaning 
of  the  Connecticut  statute,  forbidding  Sunday 
selling  of  intoxicating  liquors,  etc'  We  opine 
that  tJie  Texan  court  would  have  held  both  this 
park  and  platform  a  "  saloon,"  as  there  would 
certainly  be  "  room  for  the  reception  of  com- 
pany,' and  if  the  dancing  was  good,  and  the 
dresses  of  any  Worth,  there  would  be  an  exhibi- 
tion of  works  of  art  as  well. 

A  "cellar"  may  be  referred  to  as  the  above- 
mentioned  house.''  In  England  it  was  hvild  that 
a  covenant  not  to  use  a  house  as  a  "  beer-house," 
was  not  broken  by  the  sale,  under  a  license,  of 
beer,  by  retail,  to  be  consumed  off  the  premises.' 
One  Schofield  had  a  license  to  sell  beer  "  not  to 
be  drunk  on  the  premises."  The  bartender  handed 
a  mug  of  beer  throuj^h  an  open  window  in  Scho- 
. field's  house  to  a  thirsty  soul,  Avho  paid  for  it,  and 
innnediately  drank  it  standing  on  the  Queen's 
highway,  but  as  close  as  possible  to  the  window. 
The  Court  of  Queen's  Bench  considered  that  this 


>  State  V.  Barr,  39  Conn.  41 . 

*C'oni.  V.  Intoxicating  Liquors,  105  Maes.  181. 

3  L.  &  N.  W.  Railway  v.  Qarnett,  L.  R.,  9  Ex.  36. 


Definitions. 


07 


was  not  a  case  of  selling  beer  "  to  be  consumed 
on  the  premises."  ' 

If  one  becomes  "  gloriously  drunk,"  as  the  poet 
Cowper  says,  ''  across  the  walnuts  and  the  wine  " 
(to  quote  Tennyson)  at  a  social  party  held  at  the 
house  of  a  friend,  he  cannot  be  prosecuted  for 
being  intoxicated  in  a  pu])lic  place."  Nor  would 
he  be  liable  if  found  drunk  in  his  own  house,' 

A  tavernkeeper  found  drunk  at  half -past  eleven 
o'clock  at  night  in  his  own  house,  after  his  ])rem- 
ises  have  been  closed  for  the  night,  cannot  be 
punished  for  being  found  drunk  on  "licensed 
premises;"  for  such  words  must  mean  preifiises 
open  to  the  public  during  licensed  hours,  or  during 
the  time  when  the  premises  are  a  quasi  public 
place.  Mr.  Justice  Mellor  thought  that  to  hold 
him  liable  for  being  drunk  in  the  privacy  of  his 
own  chamber  would  produce  the  most  singular 
consequences.*  An  innkeeper  drunk  on  his  own 
premises,  while  they  are  open,  is  as  much  amen- 
able to  the  penalty  of  being  found  drunk  in  a 
publis  place,"  as  if  found  upon  the  highway.^ 


I 


it 


a 


'  Def,l  V.  Schofield,  L.  11.,  3  Q.  B.  8. 

-State  V.  Sowers,  53  Ind.  311  ;  State  v.  Waggoner,  id. 
481. 

3  Reg.  V.  Blake,  6  Pr.  Rep.  (Ont.)  244  ;  Lester  v.  Torrens, 
L.  R.,  3Q.  B.  Div.  403. 

^Lester  v.  Torrens,  supra. 

■'^Idera  per  Lusii,  J.  •,  but  see  C^ole  v.  Coulton,  29  L,  J.,M. 
C. 125. 


f>  E 

i     t 


68 


Definitions. 


In  Yorkshire,  once  npon  a  time,  a  policeman, 
going  np  stairs  in  a  tavern,  found  the  landlord  — 
who  believed  as  the  poet  sang  — 

He  who  goes  to  bed,  and  goes  to  bed  sober. 
Falls  as  the  leaves  do,  and  dies  in  October  ; 
But  he  who  goes  to  bed,  and  goes  to  bed  mellow, 
Lives  as  he  ought  to  do,  and  dies  an  honest  fellow. 

drunk,  and  hauled  him  before  the  magistrates,  and 
they  fined  him  for  being  drunk  in  a  public  place. 
Alas  for  the  maxim,  Donius  sua  quicpie  est 
tutissimum  refuijium.' 

A  "  public  place "  is  any  place  to  which  the 
public  have  admission  free  of  charge;  or  any 
place  which,  thougli  not  open  to  the  public  with- 
out payment,  is  still  public  to  all  who  are  will- 
ing to  pay  certain  charges,  such  as  railways, 
omnibuses,  and  so  forth.'  But  theaters  and  other 
places  where  the  proprietors  have  a  right  to  re- 
fuse admission  to  the  profo^num-  liul^us  notwith- 
standing their  willingness  to  pay,  are  not  pulj- 
lic  places.®  A  "  beer-house  "  is  a  public  hou.'^e 
where  beer  is  sold  to  be  drank  upon  the  premises  ; 
a  "  beer-shop  "  is  a  place  M'^here  beer  is  sold  to 
be  drank  off  the  premises,  or,  perliaps,  it  does  not 

'  Wharton  on  Innkeepers,  p.  81. 

2  Ex  parte  Davis,  26  L.  J.,  M.  C.  178  ;  Re  Fortescue,  35 
L.  J..  M.  C.  121;  R.  V.  Holmes,  22  L.  J.,  M.  C.  122  ;  Sewell 
V.  Taylor.  29  L.  J.,  M.  C.  50. 

*  Wharton  on  Innkeepers,  70  ;  22  A.  L.  J.  24. 


Definitions. 


69 


matter  whether  it  is  consumed  on  the  premises 
or  not.^ 

The  phrase  "spitituous  liquors"  does  not  in- 
clude "  fermented  liquors."  '  "  Ale,"  being  pro- 
duced by  fermentation  and  not  distillation,  has 
been  held  to  be  not  "  spirituous  liquor."'  "Ale  and 
beer,"  which  differ  from  each  other  by  the  latter 
containing  more  hops  than  the  former,  are  both  in- 
toxicating liquors,  and  are  also  considered  "  strong 
and  spirituous  liquors."  *  Walworth,  chancel- 
lor, says,  in  his  elaborate,  learned  and  interesting 
opinion  in  this  last  case :  "  That  the  words '  strong 
liquors,'  in  the  New  York  statutes,  were  probably 
intended  to  include  all  those  strong  and  inebriating 
drinks  sold  and  used  as  beverages  which,  in  King 
James'  version  of  the  Scriptures,  are  called  '  strong 
drink,'  as  well  as  the  product  of  the  still.  It  will 
be  seen,"  said  the  chancellor,  "by  a  reference 
to  the  French  translation  of  tlie  Bible,  that  the 
Hebrew  word,  which  is  supposed  to  mean  any 
kind  of  fermented  intoxicating  beverage,  and 
which  in  our  English  version  is  called  '  strong 
drink,'  is,  in   the  French  translation,  generally 


'll 


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»  Bishop  of  St.  Albans  v.  Batlersby,  L.  R.  3  Q.  B.  D.  359 ; 
London,  etc.,  v.  Field,  L.  R.,  10  Cliy.  D.  645;  Holt  v.  Coll- 
yer.  id.  718. 

■■'  State  V.  Adams,  51  N.  H.  r,68 ;  State  v.  Moore,  5  Blackf. 
118. 

8  People  V.  Culley,  20  Barb.  248  ;  State  v.  Moore,  5 
Blackf.  118. 

■*  Nevin  v.  Ladue,  3  Deuio,  407. 


f! 


% 


.« 


ro 


Dkfinitioxs. 


rendered  eervoise.  And  that  is  the  proper  French 
word  to  designate  the  ale  or  beer  of  the  ancients 
prodnced  by  tlie  fermentation' of  grain  in  water. 
The  Hebrew  word  nsed  in  the  Scriptures  coukl 
not  have  meant  distilled  or  ardent  spirits,  for  the 
art  of  distillation  was  not  known  to  the  ancients, 
but  is  supposed  to  have  been  discovered  several 
hundred  years  after  the  Christian  era.  But  the 
intoxicating  beverage  now  known  as  ale  or  beer, 
produced  by  fermentation  of  barley,  wheat  and 
other  farinaceous  substances,  must  have  been  used 
by  the  Jews  at  a  very  early  day,  as  it  was  by 
other  Eastern  nations.  Its  use  as  a  beverage 
was  probably  kno^Vn  to  them  while  they  sojourned 
in  the  land  of  Ham,  and  before  the  Pentateuch 
was  written.  For  beer  was  in  use  in  Egypt  from 
the  most  remote  antiquity.  The  learned  Presi- 
dent De  Gorquet,  in  his  valuable  trteatise  on  tie 
origin  and  progress  of  laws,  and  of  the  arts, 
among  the  most  ancient  nations,  says:  'That 
next  to  wine,  it  was  the  most  ancient  and  uni- 
versal liquor.  It  was  the  common  drink  of  the 
greatest  part  of  Egypt,  and  its  invention  is  ex- 
ceedingly ancient.'  And  the  discovery  of  the 
art  of  making  it  (as  stated  by  Diodorus  Siculus) 
was  there  ascribed  to  Osiris,  who  was  the  Bac- 
chus of  the  Egyptians.  And  as  the  vine  did  not 
flourish  in  Egypt  (at  least  according  to  Herodo- 
tus) it  probably  was  oinos  kristhinos^  or  barley 
wine,  that  Joseph  gave  to  his  brethren  on  their 


':b 


Dkfinitions. 


71 


second  visit  to  that  countrv  to  l)uv  corn,  when 
they  drank  largely  and  became  intoxicated,  as  tlie 
Hebrew  text  clearly  indicates,  or,  in  the  lan- 
gnage  of  our  translation,  ''  drank  and  were 
merry."  ' 

"Ale,  beer,  porter,  rum,  gin,  brandy,  whisky 
and  wine,"  are,  in  Missouri,  all  held  to  be  *"  in- 
toxicating liquors."  "  But  in  Rhode  Island  there 
is  no  presumption  that  "  beer"  is  a  malt  licpior.* 

The  Alabama  court  knows  what  "lager  bier" 
is.  When  C('  sidering  the  question  as  to  whether 
it  is  a  malt  liquor  or  not,  the  court  remarked : 
"It  is  most  unquestionable  that  courts  will 
take  notice  of  what  is  within  the  common  ex- 
perience and  knowledge  of  all  men.  Lager 
bier  is  certainly  universally  known  here  as  a 
malt  liquor;  and  it  would  be  as  vain  and  useless 
to  offer  evidence  that  such  is  its  character,  as 
that  whisky  is  a  distillation  of  grain,  or  wine 
the  fermented  juice  of  the  grape,  or  cider  the  ex- 
pressed juice  of  the  apple.  *  "'  *  From  its  in- 
troduction into  this  country  as  a  beverage,  that  it 
is  a  malt  liquor  is  known  wherever  it  is  drunk  or 
is  an  article  of  commerce.  Courts  caimot  profess 
ignorance  of  the  meaning  of  words  of  popular 
use,  and  about   the  signification  of  which  no  in- 


} 


li 


■I 


vt 


' 


li 


'  Nevin  v.  Ladue,  supra. 

*  State  V.  Wittman,  13  Mo.  407. 

a  State  V.  Beswick,  13  R.  I. 


72 


Definitions. 


telligent  member  of  the  community  could  hesi- 


tate. 


)?  1 


In  many  of  the  States  "  lager  bier "  is  by 
ptatute  included  in  the  term  "  intoxicating  liquor ;" 
however  mild  it  may  be  in  reality,  the  legislators 
of  Maine,  Massachusetts  and  other  States  hold 
that  it  is  intoxicating,  and  it  is  dealt  with  in  such 
•  places  accordingly. 

"  Lager  bier "  is  recognized  in  the  Rhode 
Island  statutes  as  a  malt  liquor,  and  so  the  courts 
can  assume  that  it  is  such  without  actual  proof 
of  the  fact."  Evidence  of  keeping  and  selling 
"lager  bier,"  it  being  a  malt  and  intoxicating 
liquor,  is  sufficient  to  sustain  a  criminal  com- 
plaint for  keeping  ale,  wine,  rum,  and  other 
strong  and  malt  liquors.* 

"  Spruce  beer,  spring  beer,  ginger  beer,  and 
molasses  beer,"  may  each  and  all  be  properly 
termed  "fermented  beer,"  as  fermentation  to 
a  certain  extent  is  necessary  to  lit  these  mild 
drinks  for  use.  But  none  of  these  are  ever 
considered  "strong  drinks  or  intoxicating  bev- 
erages," either  in  America  or  England,  and  they 
are,  therefore,  not  excisable  articles.  They  all 
contain  a  certain  amount  of  alcohol.  They  have 
not  been  considered  strong  drinks  or  intoxicat- 

J  Watson  V.  State,  55  Ala.  158. 
8  State  V.  Goyette,  11  R.  I.  592. 

8  State  V.  Campbell,  18  A.  L.  J.  397 ;  Rhode  Island   v. 
Rush,  13  R.  I. 


D 


EFINITIONS. 


73 


ing  beverages,  either  because  it  was  supposed 
that  the  human  stomacli  had  not  the  capacity 
to  contain  a  sufficient  quantity  of  such  kinds  of 
beer  (if  they  were  properly  made)  to  unduly  or 
injuriously  excite  the  person  who  used  them  as  a 
beverage ;  or  for  the  reason  that  those  who  were 
in  the  habit  of  using  them  never  got  intoxicated 
by  such  use.     So  says  Chancellor  Walworth.' 

'•  Wine"  is  included  under  the  term  ''intoxi- 
cating liquors ; "  unless,  indeed,  in  Iowa  it  is  man- 
ufactured from  grapes,  currants  or  fruits  grown 
in  the  State."  In  North  Carolina  it  has  been 
held  that  the  intoxicating  quality  of  port  wine 
is  a  matter  of  common  knowledge,  and  no  proof 
need  be  given  to  a  jury  of  that  fact.' 

"  Drink  or  medicine  ? "  That  is  often  a  ques- 
tion, and  the  court  in  Iowa  has  said,  so  long 
as  liquors  retain  their  character  as  intoxicat- 
ing liquors,  capable  of  use  as  beverages,  not- 
withstanding that  other  ingredients  —  roots  or 
tinctures  —  may  have  been  mixed  therewith, 
thev  fall  under  the  ban  of  the  law,  and  are  still 
considered  intoxicating  liquors ;  but  when  they 
are  so  compounded  with  other  substances  as  to 
lose  their  distinctive  characters  of  intoxicating 
liquors,  and  are  no  longer  desirable  for  use  as 

*  Nevin  v.  Ladue,  sttpra. 

«  Worley  v.  Spurgeon,38  lov/a,  465;   State  v.  Stapp,  29 
id.  551. 
3  State  V.  Packer,  80  N.  C.  439. 


M 


II 


:\ 


4  J  It 

4 

J  t 


74 


Dkfinitioxs. 


stiiiuilating  hevernges*,  then  they  are  medicine, 
and  their  sale  is  not  proliibited.' 

"Cider"  is  not  a  vinous  liquor.''  This  seems 
reasonable  enough  in  view  oi  the  decision  that 
-'vinous  liquors"  mean  liquors  made  from  the 
juice  of  the  grape/ 

A  "dram,"  in  common  parlance  in  Texas, 
means  something  that  has  alcohol  in  it ;  some- 
thing that  can  intoxicate.  At  least  so  say  the 
judges.*  Even  calling  an  article  by  the  innocent 
name  of  "pop"  will  not  make  it  a  temperance 
drink,  if  it  contains  malt  liquor  and  will  intoxi- 
cate if  taken  in  sufficient  (Quantity.* 

Some  years  ago,  in  Indiana,  they  were  very 
virtuous,  and  the  court  decided  that  the  mere 
opinion  of  a  witness  that  common  "  brewers'* 
beer"  was  intoxicating  was  not  sufficient  to 
prove  that  it  was  so,  nnless  the  testimony  of  the 
witness  was  founded  on  a  personal  knowledge  of 
its  effects,  or  of  its  ingredients  or  mode  of  manu- 
facture, and  that  the  court  could  not  take  judicial 
notice  that  it  was  intoxicating.'  But  alas  for 
the  good  old  days  and  childlike  innocence  of 
judges   and   jurymen!      Now   bpth   courts   and 

'State  V.  Laffer,  38  Iowa,  422;    Com.  v.   Ramsdell,  23 
Alb,  Law  Jour.  ol4. 

*  Feldmau  v.  Morrisou,  1  111.  App.  469. 
3  Adler  v.  State,  55  Ala.  16. 

*  Lacy  V.  State,  32  Tex.  227. 

"^  Godfreidson  v.  People,  88  111.  284. 
«  Glare  v.  State,  43  Ind.  483. 


;i;|| 


il 


DKFixrrioN8. 


ii> 


*i' 


iurios  in  tluit  Shito  know  iiuHciallv  and  offlclallv 
that  "wliiskv"  is  an  iiitoxieatinir  drink  without 
any  proof.'  In  fact  tho  decisions  appear  to  have 
been  a  little  mixed  in  that  State.  In  one  case, 
some  time  ago,  theconrt  said  that  it  did  not  judi- 
cially know  that  wine  was  intoxicating,"  and  yet 
about  tile  same  time  it  took  notice  of  the  fact 
that  spirituous  licpiors  were  intoxicating.'  Per- 
haps the  spirits  then  were  not  so  mixed  as  the 
wine. 

We  nnist  do  jurymen  the  credit  of  believing 
that  they  have  an  acipiaintance  with  ordinary 
terms  and  allusions,  whether  historical,  or  fig- 
urative or  parabolical.  At  least  Judge  Cole- 
ridge said  so.  And  what  is  "malt  lirpior  "  is  a 
question  of  fact  for  the  jury  to  decide,  and  not 
one  of  law  for  the  judge.*  Where  a  statute 
speaks  of  "  intoxicating  li(piors,"  and  it  is  shown 
that  lager  bier  was  sold,  it  is  for  the  jury  to  say 
—  from  the  evidence,  of  course — whether  it  is 
intoxicating  or  not.* 

In  Massachusetts  a  jury  was  held  warranted  in 
finding  "  ale ''  to  l)e  intoxicating,  merely  on  the 
testimony  of  a  witness  who  saw  and  smelled,  but 

1  Eagen  v.  State,  53  Ind.  163., 
«  Jackson  v.  State,  19  Ind.  313. 

'  Carmen  v.  State,  18  Ind.  450 ;  Com.  v.Peckham,  3  Gray, 
485. 
*  State  V.  Starr,  67  Me.  343. 
»  Kan  V.  People,  63  N.  Y.  377. 


I  if 


f 

I 

■! 


n'! 


M, 


I  ! 


■  i 


m 

w 
1' 


II 


;:< 


tl 


76 


Definitions. 


did  not  taste  it.'  Perhaps  these  twelve  men,  good 
and  true,  had  had  a  view  themselves.  In  Maine 
one  may  be  indicted  and  convicted  for  selling,  for 
tippling  purposes,  "  cider  and  wine,"  although 
made  from  fruit  grown  in  the  State,  if  the  jury 
find  that  they  are  intoxicating."  How  much 
and  how  long  would  it  take  the  jury  to  find  this 
out  ?  "Would  they  be  allowed  to  take  specimens 
with  them  into  their  withdrawing  room  as  they 
do  documents,  to  examine  ?  Or  would  the  judge 
look  upon  cider  and  native  wine  as  Mr.  Justice 
Creswell  did  upon  water  ?  A  counsel  once 
objected  to  a  jury  having  water  while  consider- 
ing their  verdict.     "  Why  not,  Mr.  ,  why 

not  ? "    queried    the   judge,  "  Water   is  neither 

*  meat '  nor  '  fire,'  and  no  sane  man  can  say  it  is 

*  drink ; '  let  the  jury  have  as  much  as  they 
want." 

"Is  Old  Tom  Gin  'spirits?'"  This  was  the 
question  which  the  Court  of  Queen's  Bench  in 
Ontario  had  to  decide  upon  one  occasion.  Wit- 
nesses and  dictionaries  were  called  in  to  the 
assistance  of  the  court.  Some  witnesses  thought 
spirits  meant  pure,  unflavored  spirits ;  another 
thought  that  spirits  lost  their  character  as  such  if 
mixed  with  any  thing  else,  that  then  they  became 
a  cordial.     The  general  notion  was  that  Old  Tom 

'  Haines  v.  Hanrahan,  105  Mass.  4S0. 
2  State  V.  Page,  66  Me  418 


?1. 


Definitions. 


n 


Gin  being  ii  compound  of  spirits,  sugar  and 
flavoring  matter,  it  was  no  longer  spirits.  The 
dictionaries,  however,  were  appealed  to  on 
the  subject  of  gin.  Worcester  said,  ''  ii  is  a  kind 
of  ardent  spirits  originally  m^inufactured  in  Hol- 
land from  rye  and  malted  bigg  (barley),  and 
flavored  with  juniper  berries."  The  Encyclo- 
paedia Britannica  described  it  "  as  a  kind  of  malt 
spirit  flavored  with  the  essential  oil  of  juniper. 
The  inferior  spirit  sold  as  gin  is  said  to  be 
flavored  with  turpentine,  and  rendered  biting 
to  the  palate  by  caustic  potash."  McCuUocli 
and  AYebster  botli  class  "gin "  among  "  spirits." 
The  judge  could  not  see  that  the  admixture  of 
sugar,  with  some  flavx)ring  essence  to  make  it 
more  agreeable  to  the  taste,  conld  deprive  Old 
Tom  Gin  of  its  general  character,  any  more  than 
the  mixing  of  spirits  wit  M.  vater  to  reduce  its 
strength ;  nor  did  he  think  that  the  giving  a 
nfime  or  prefix,  such  as  Old  Tom,  to  any  one  of 
the  various  drinking  beverages  coming  within 
the  term  "  spirits,"  freed  it  from  the  generic  appel- 
lation ;  on  the  whole  he  was  clearly  ci  the 
opinion  that  Old  Tom  Gin  came  withiii  the 
generic  appellation  of  spirits  ;  to  hold  otherwise 
he  considered  would  be  eontrarv  to  the  fair  and 
ordinary  understanding  of  the  term,  and  a  mere 
trifling  with  words.' 

'  Winning  v.  Gow,  32  U.  C  R.  528. 


:i 


^i 


4 


I  '■ 


'  i  i.t 


78 


Defixitions. 


i 


?  I 


In  deciding  wjiutai'o  or  wluit  arc  not  ""  spirits, 
under  excise  acts,  in  the  absence  of  any  btatutable 
detiiiition,  tlie  rnlcj  is  to  assiune  that  the  word  in 
question  is  used  in  the  sense  in  M'hich  "1:  is 
ordinarily  understood.  And  nothins;  can  he  taken 
to  he  "  spirits  "  winch  does  not  come  within  the 
definition  of  an  inilaniniabie  liquid  produced  by 
distillation  ;  either  pure  or  mixed  only  with  in- 
gredients which  do  not  convert  it  into  some 
article  of  commerce  not  known  in  common  par- 
lance under  the  general  appellation  of  '•  spirits." 
''Sweet  spirits  of  nitre"  (we  have  it  upon  the 
authority  of  no  less  a  judge  tlian  Baron  Rolfe) 
are  not  adapted  for  ordinary  use  as  an  intoxicat- 
ing beverage  ;  nor  are  they  ''  spirits  "  within  the 
raeaning  of  the  excise  acts.' 

''Spirits"  do  not  cease  to  be  spirits  because 
mixed  with  small  quantities  of  water.^ 

The  "  Sabbath  night  *'  includes  as  well  the  time 
between  midnight  on  Saturday  and  daylight  on 
Sunday  as  the  time  between  dark  on  Sunday  and 
midnight.^  When  a  tavern  is  ordered  to  be  closed 
on  Sunday,  the  law  means  that  sales  of  liquor 
shall  be  entirely  stopped  and  traffic  shut  off 
effectually,  so  that  neither  drinking  nor  the  con- 
veniences of  drinking  shall   be  accessible  to  the 

'  Attoi-ney-Qeneral  v  Bailey,  1  Ex.  393. 
2  Scott  v.  Gilmore,  3  Taunt.  22G. 
^  Kroer  v.  People,  78  111 .  294. 


DeFINITIOXs:. 


79 


-il: 


piil,)li;'.'  If  ill e  law  says  tliat  bar-rooms  are  to  l)o 
sliut  during  certain  hours,  it  is  not  obeyed  by 
the  restaurant-keeper  merely  abstaining  from  sell- 
ing and  hanging  a  curtain  in  front  of  his  bar,  if 
the  room  is  still  open/  But  simply  opening  the 
bar  does  not  constitute  the  offence,  unless  it  is 
open  as  it  is  on  week  days.'  A  single  glass  sold^ 
it  at  the  time  the  room  is  accessible  to  the  public, 
k  sufficient  fo  render  one  guilty  of  keeping  open 
a  tippling-house  on  Sunday.'  Ilyneman,  when 
accused  of  selling  ]i(pior  on  the  Lord's  day,  tried 
to  escape  by  saying  that  he  was  of  the  seed  of 
Abraham,  and  that  he  conscientiously  belie\'ed 
that  the  seventh  day  should  be  observed  as  the 
Sabbath,  and  not  the  first.  But  it  was  of  no 
use„' 

As  to  the  mode  of  selling,  Richards,  C  J., 
thought  that  selling  ''  a  bottle  of  brandy "  for 
$1.25  was  selling  by  retail ; "  and  in  another  case 
Chief  Justice  Hagerty  said  that  he  would  assume 
that  a  sale  of  a  •'  bottle  of  gin  "  at  sixty  cents  was 
a  sale  by  retail.''  While  in  Illinois  the  court  held 
that  proof  that  intoxicating  liquors  were  retailed 


•'I 

i 
'  i 


'it 


'  Kurtz  V.  People,  32  Mich  279. 

2  Baldwin  v.  Chicago.  08  111.    18. 

3  Patten  v.  Centralia,  47  111.  370 
•»  Koop  V.  People,  47  111.  327, 

•"'  Com.  V.  Hyneman,  101  Mass.  30. 
"  Reg.  V.  Durham,  35  T    C.  R,  508. 
'  Reg.  V.  Strachan,  20  C,  P.  (Ont.)  184. 


w 


1 1 


80 


Definitions. 


"bj  the  drink"  warranted  a  finding  that  the 
sale  was  in  "  no  larger  quantity  than  a  quart " 
(as  restricted  in  the  111.  Rev.  Stat.  1845).'  The 
judges  of  the  court  clearly  never  heard  of  the 
Duke  of  Tenterbelly.  Bishop  Hall  tells  us  that 
this  famous  nobleman,  when  returning  thanks 
for  his  election,  took  up  his  large  goblet  of  twelve 
quarts,  exclaiming  should  he  be  false  to  their 
laws  "  Let  never  this  goodly  formed  goblet  of 
wine  go  jovially  through  me;"  and  then,  says 
the  historian,  "  he  set  it  to  his  mouth,  stole  it  off 
every  drop,  save  a  little  remainder,  which  he 
was  by  custom  to  set  upon  his  thumb's  nail  and 
lick  it  off,  as  he  did."  The  sale  of  a  single  glass 
was  held  sufficient  to  convict  a  man  of  selling 
intoxicating  liquor  in  less  quantities  than  a  quart.'' 
If  one  sells  an  occasional  drink  of  spirits  out  of  a 
bottle  not  in  a  bar-room,  and  without  having  the 
slightest  intention  of  delaying  the  payment  of  the 
National  debt  by  defrauding  the  National  revenue, 
he  cannot  be  said  to  be  carrying  on  the  business 
of  a  retail  liquor  dealer.' 

Some  wise  men  down  East  beins:  desirous  of 
promoting  social  and  literary  objects,  as  they 
said,  formed  an  unincorporated  club  and  so 
arranged  matters  that  they  could  get  beer  in 
their   club-house   whenever   they   chose, 


giving 


'  Lappington  v.  Carter,  67  111.  483. 

«  Kansas  City  v.  Muhlback,  08  Mo.  638. 

8  U.  S.  V.  Jackson,  1  Hugh.  531. 


Definitions. 


81 


checks  iu  exchange  for  glasses  of  it;  they  ob- 
jected to  being  considered  dealers  in  beer,  or 
to  paying  revenue  taxes  j  but  the  court  decided 
against  them  on  botli  points.^  In  Illinois  some 
gentlemen  had  a  most  elaborate  plan  for  obtain- 
ing drinks.  They  formed  an  association  for  the 
avowed  purpose  of  promoting  temperance,  friend- 
ship, etc.  One  of  the  party  was  already  the  happy 
possessor  of  a  dram  shop,  they  bought  him  out, 
elected  him  to  the  honorable  position  of  treasurer, 
and  left  him  iu  charge  of  his  old  shop.  So 
anxious  were  the  promoters  to  extend  the  benign 
benefits  of  temperance  and  friendship  that  the 
doors  of  their  society  were  thrown  open  to  any 
and  all  who  were  willing  to  pay  one  dollar.  In 
token  of  payment  the  member  received  a  ticket 
upon  which  were  the  numbers  from  one  to 
twenty,  inclusive.     When  moved  by  one  of  the 

reasons  wliy  men  drink  ; 
Good  wine,  a  friend,  because  I  'm  dry, 
Or  lest  I  should  be  by  and  bye, 
Or  any  other  reason  why  ; 

the  member  called  upon  the  treasurer,  presented 
his  ticket,  had  a  number  punched,  and  received 
his  liquor  or  his  ciga^.  The  treasurer  took  all 
the  money,  gave  no  account  to  the  others  and 
bought  all  the  drinkables  and  smokables.  The 
court  was  so  bigoted,  narrow  minded  and  opposed 


i 


>  U.  S.  V.  Wittig,  3  Low,  4G6. 


•  » 


»^ 


82 


Definitions. 


to  the  enlightening  inflrence  of  temperance  and 
frieudshii?  that  it  considered  the  whole  affair  a 
fraud  and  a  device  to  evade  the  law ;  and  that 
the  treasurer  was  guilty  of  unlawfully  selling  in- 
toxicating liquor.'  In  one  establishment,  when- 
ever a  customer  purchased  a  cigarette  he  was 
handsomely  treated  to  a  glass  of  whisky,  the 
coui't  (knowing,  perhaps  from  personal  experi- 
ence, tlie  cost  of  such  articles,  or  having 
had  evidence  submitted)  considered  that  the 
transaction  was  a  sale  of  the  whisky  as  well 
as  of  fv.Q  cigarette  and  acted  accordingly." 
In  Alabama  the  court  will  not  convict  one  of  a 
breach  of  a  penal  statute  when  he  does  an  act 
which  merely  contravenes  it.  Young  got  a  dol- 
lar from  B.  (whom  he  knew  to  be  an  intemperate 
man)  upon  the  promise  that  he  should  have  the 
balance  remaining  after  paying  for  a  bottle  of 
whisky ;  he  bought  a  bottle,  delivered  it  to  B. 
And  the  court  held  that  he  had  neither  sold  nor 
given  away  the  liquor." 

A  man  may  be  a  fit  person  to  be  intrusted 
with  the  sale  of  intoxicating  liquor  "  in  Indiana 
although  ho  has  been  drunk  once  and  takes  a 
drink  sometimes.  A  whisky  seller  need  not  be  a 
teetotaler.*     To  "  revel  "  in  Ehode  Island  means 

1  Rickai't  V.  People,  79  111.  85. 
5  Archer  v.  State,  45  Ind.  33. 

2  Young  V.  State,  58  Ala.  358. 

'•  Calder  v.  Shephard,  61  lud.  319. 


Definitions. 


88 


to  behave  in  a  noisy,  boisterous  manner  like  a  bae- 
elianal,'  and  has  nothing  to  do  with  the  revels  or 
solemn  dances  which  were  held  in  the  Inns  of 
Court  in  the  good  old  days  of  yore.  Those 
splendid  old  inns  where  good  ale  was  so  abun- 
dant that  when,  in  1678,  the  Inner  Temple  was 
in  flames,  and  the  Thames  so  fast  frozen  that  no 
water  could  be  got,  the  beer  in  the  benchers' 
cellars  was  emptied  into  the  engines  and  the 
flames  subdued. 


in 


1 


if' 

km 


», 


•  Petition  of  Began,  12  R  I.  309. 


!ii| 


I!  J 
I! 


Hi 


84 


Contracts, 


CHAPTER  V. 


CONTRACTS. 


PoTHiER  defines  a  contract  to  be  "  an  agreement 
by  which  two  parties  mutually  jDromise  and  en- 
gage, or  one  of  them  only  promises  and  engages 
to  tlie  other,  to  give  some  jmrticular  thing,  or  to 
do,  or  abstain  from  doing,  some  particular  act." 

Blackstone  says,  "  A  contract  is  an  agreement, 
upon  sufficient  consideration,  to  do,  or  not  to  do, 
a  particular  thing,"  '  while  Parsons,  the  leading 
writer  on  the  subject  in  America,  defines  it  as 
"  an  agreement  between  two  or  more  parties  for 
the  doing  or  not  doing  of  some  particular  thing." " 
And  "  agreement,"  said  Sergeant  Bollard,'  "  is  de- 
rived from  the  phrase  aggregatio  mentiumP  The 
learned  sergeant's  philology  was  probably  not  in 
advance  of  his  day  and  may  be  considered  doubt- 
ful, but  his  law  was  sound,  as  the  consent  and 
harmony  of  the  minds  of  the  contracting  parties 
is  essential  to  the  validitv  of  an  ao:reement.  There 
must  be  a  full  and  free  consent.* 

'2  Com,  446. 

'Parsons  on  Contracts,  I,  p.  6. 

2  Arguendo  in  Renigero  v.  Fogosra,  Plowd.,  17. 

'Story's  Eq.  Jur.,  §  223. 


'ill 


Contracts. 


85 


M 


Consent  is  an  act  of  reason,  accompanied 
with  deliberation,  the  mind  weighing  as  in  a 
balance  the  good  and  evil  on  each  side.  And, 
therefore,  it  has  been  well  remarked  hy  an  able 
commentator  npon  the  law  of  Natnre  and  Na- 
tions, that  every  true  consent  supposes  three 
things:  firstly,  a  physical  power;  secondly,  a 
moral  power  ;  and  thirdly,  a  serious  and  free  nse 
of  those  powers.  And  Grotins  has  added,  that 
what  is  not  done  with  a  deliberate  mind  does  not 
come  imder  the  class  of  perfect  obligations. 
And  hence  it  is,  that  if  consent  is  obtained  bj 
meditated  imposition,  circumvention,  surjjrise, 
or  undue  influence,  it  is  to  be  treated  as  a  de- 
lusion, and  not  as  a  deliberate  and  free  act  of 
the  mind.  For  although  the  law  will  not  gener- 
ally examine  into  the  wisdom  or  prudence  of  men 
in  disposing  of  their  property  or  in  binding 
themselves  by  contracts  or  by  other  acts,  yet  it 
will  not  suffer  them  to  be  entrapped  by  the 
fraudulent  contrivances,  or  cunning  or  deceitful 
management  of  those  who  purposely  mislead 
them.* 

It  is  upon  this  general  ground,  that  a  rational 
and  deliberate  consent  is  wanting,  that  the  con- 
tracts and  other  acts  of  persons  no7i  compotes 
mentis  are  generally  deemed  to  be  invalid,  es- 
pecially in   courts   of  erjuity.     Grotius  has,  as 


'i'  I 


Tl 


m'.\ 


i     i 


Story,  supra. 


86 


CONTKAC'IS. 


r^ 


III 


*!■  i^ 


Story  says,  with  great  propriety  insisted  tliat 
tliis  is  a  part  of  tlie  law  of  nature,  for  (says  he) 
tlie  use  of  reason  is  the  first  requisite  to  consti- 
tute the  obligation  of  a  promise,  which  idiots, 
madmen  and  infants  are  consequently  incapable 
of  making.  And  long  before  his  day  Justinian 
laid  it  down  that  a  madman  could  do  no  busi- 
ness, l)ecause  he  does  not  understand  what  he 
does.  And  Bracton  and  Fleta,  those  sages  of  the 
English  common  law,  use  language  to  the  same 
effect. 

In  general  every  person  may  enter  into  con- 
tracts ;  and  when  the  contract  is  made  the  law 
presumes  the  competency  of  th6  parties  to  it; 
but  of  course  the  presumption  may  be  rebutted, 
and  if  one  rests  his  action  or  his  defence  upon 
the  incompetency  or  incapacity  of  himself  or  the 
other  party  he  must  prove  it.^ 

Lord  Coke  mentions  four  different  classes  of 
persons  who,  in  the  eye  of  the  law,  are  non  com- 
potes mentis,  and  so,  as  a  rule,  unable  to  bind 
themselves  by  contracts  or  promises.  The  lii'st 
is  an  idiot  or  fool-natural ;  the  second,  is  he  who 
was  of  good  and  sound  memory,  and  by  the  visita- 
tion of  God  has  lost  it ;  the  third  is  a  lunatic, 
limaticus,  qui  gaudet  lucidis  hitervallis^  and 
sometimes  is  of  o-ood  and  sound  memorv  and 
sometimes  non  compos  mentis ;  and  the  fourth, 


i 


'  Jeune  v.  Ward,  2  Stark,  336 


: 


1  ;i- 


CoNTKACTS. 


87 


18  a  noth  (.'(Jmjjos  mentis  by  his  own  jiet,  as  a 
drunkard.' 

Thu  common-law  lawyers  long  insisted,  in  de- 
fiance of  natural  justice  and  the  universal  prac- 
tice of  all  the  civilized  nations  of  the  world,  as 
Fonblanque  says,*  upon  the  maxim  that  no  man 
of  full  age  should  be  allowed  to  stultify  himself 
—  that  no  one  could  avoid  his  act  or  his  contract 
by  showing  that  he  was  intoxicated  when  he  en- 
tered into  it,  and  that  a  court  of  equity  could 
not  relieve  against  a  maxim  of  the  common  law, 
ntilprendra  advantaye  de  son  tort  demesne. 

And,  indeed,  it  must  be  admitted  that  the 
drunkard  has  less  ground  for  avoiding  his  own 
acts  and  contracts  than  any  other  non  cornpos 
mentis.^  At  common  law,  a  distinction  was  made 
between  the  party  himself  and  his  heirs,  execu- 
tors or  administrators  ;  the  latter,  after  the  death 
of  the  insane  person,  might  avoid  his  contract  or 
other  acts  upon  the  ground  of  his  insanity,  while 
he  himself  was  powerless  to  do  so.  Story  re- 
marks: "Ilow  so  absurd  and  mischievous  a 
maxim  could  have  found  its  way  into  any  system 
of  jurisprudence  professing  to  act  upon  civilized 
beino-s  is  a  matter  of  wonder  and  humiliation. 
There  have  been  many  struggles  against  it  by 
eminent  lawyers  in  all  ages  of  the  common  law, 

'  Co.  Litt.  247  a. 

UEq.  B.  l,cli.  2,§1. 

■  3  Bac.  Abr.,  Idiots  and  Lunatics,  A. 


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but  it  is,  perhaps,  soinewliat  difficult  to  resist  the 
authorities  whicli  assert  its  estahlishinent  in  the 
fundamentals  of  tlie  coninion  law,'  a  circumstance 
which  may  well  abate  the  boast,  so  often  and  so 
rashly  made,  that  the  common  law  is  the  per- 
fection of  human  reason.' 

It  IS  doubtful  whether  this  maxim  has  ever 
been  recognized  as  binding  in  any  of  the  courts 
of  conunon  law  in  the  United  States ;  and  in 
modern  times  tlie  English  judges  seem  to  be 
disposed  as  far  as  possible  to  escape  from  it/ 

The  true  and  only  rational  exposition  of  the 
maxim,  and  the  one  which  has  been  adopted  by 
courts  of  equity,  is  that  the  maxim  is  to  be  un- 
derstood of  acts  done  by  the  lunatic  in  prejudice 
of  others,  as  to  which  he  shall  not  be  permitted 
to  excuse  himself  from  civil  responsibility  on  the 
pretence  of  lunacy,  and  is  not  to  be  understood  of 
acts  done  to  the  prejudice  of  himself,  for  this 
could  have  no  foundation  in  reason  and  natural 
justice/ 

It  18  upon  the  ground  of  fraud  that  courts  of 
equity  now  interfere  to  set  aside  the  contracts 
and  other  acts,  however  solemn,  of  all  who  are 
non  compotes  Qnentisj  those  "  who  have  tarried 

'  3  BI.  Com.  291.293  ;  Baxter  v.   Portsmouth,  5  B.  &  C. 
170;  Brown  v.  Toddrel,  8  C.  &  P,  30 
■'  Story,  §  225. 

"  Baxter  v.  Portsmouth.  5  B.  *&  C.  170. 
^  Story.  S5  226. 


Contracts. 


8«.> 


long  at  the  wine  "  included.  Such  unhappy  ones 
being  incapable,  from  want  of  capacity,  of  enter- 
ing into  any  valid  contract  or  doing  any  valid  act, 
everybody  dealing  with  theni  knowing  their  in- 
capacity is  deemed,  by  equity  —  the  soul  and 
spirit  of  all  law  —  to  peq)etrate  a  meditated  fraud 
upon  them  and  their  rights.  Even  courts  of  law, 
quickened  and  softened  by  the  advance  of  ages, 
now  lend  an  indulgent  ear  to  cases  of  defence 
against  contracts  of  this  nature,  and  if  tlie  fraud 
is  made  out  will  declare  them  invalid.^ 

What  fraud  is,  the  courts  have  very  wisely 
never  laid  down  as  a  general  proposition,  nor 
have  they  ever  declart3d  any  general  rule  beyond 
which  they  will  not  go,  lest,  as  Lord  Hardwicke 
says,  "  the  fertility  of  man's  invention  would  con- 
trive some  way  of  eluding  the  rules  by  new 
schemes."  it  will,  however,  answer  ev^ery  purpose 
if  this  Protean  vice  is  understood  to  be  any  act, 
omission  or  concealment  which  involves  a  breach 
of  a  legal  or  equitable  duty,  trust,  or  confidence 
justly  reposed,  and  is  injurious  to  another,  or  by 
which  an  undue  and  unconscientious  advantage  is 
taken  of  another.' 

One  who  allows  himself  to  be  deprived  of  his 
reason  by  strong  drink  has  little  claim  upon  the 
consideration  of  the  courts,  has  but  slight  cause 
to  ask  for  relief  against  acts  done  and  contracts 


1[J 


Story,  g  327. 


9  Story,  §  187 


90 


CONTKACT!^. 


pfffi 


riKule  l)y  liiiu  ;  yet  courts  of  equity  will  relieve 
him  from  the  effects  of  liis  acts  performed  while 
tlius  temporarily  insane,  where  they  have  been 
procured  by  the  fraud  or  imposition  of  the  other 
party.  For  whatever  may  be  the  demerit  of  the 
drunlvard  himself,  the  other  party  has  not  the 
sli«^htest  ground  for  claiming  the  protection  or  as- 
sistance of  courts  of  equity  against  or  to  further 
his  own  grossly  inmioral  and  fraudulent  conduct ;  ^ 
for  he  comes  not  into  court  with  those  clean  hands 
in  which  equity  so  much  delighteth ;  fraud  has 
made  his  hands  more  foul  than  are  those  of  the 
man  who  has  stumbled  through  strong  drink. 
It  was  held  in  Vermont  .that  whenever  a  man 
loses  his  memory  and  understandinir  he  is  enti- 
tied  to  legal  protection,  whether  such  loss  is  oc- 
casioned by  his  own  imprudence  or  misconduct 
or  by  the  act  of  Providence.'  But  to  set  aside 
any  act  in  court  on  account  of  drunkenness,  it  is 
not  sufficient  that  the  party  is  under  undue  ex- 
citement from  liquor.  It  must  arise  to  that  de- 
gree which  may  be  called  excessive  drunkenness, 
where  the  party  is  entirely  deprived  of  the  use 
of  his  reason  and  understanding.  In  such  a  case 
there  can,  in  no  just  sense,  be  said  to  be  serious 
and  deliberate  consent  on  liis  part,  and  without 
this  no  contract  or  other  act  can  or  ought  to  be 
binding  by  the  law  of  nature. 


»  Story,  g§  230, 231 .        ^  Bliss  v.  Railroad,  24  Vt.  424. 


Contract?!. 


01 


If  there  be  not  that  degree  of  excessive  drunk- 
enness, then  eonrts  of  equity  will  nut  interfere  at 
all ;  unless  there  has  been  some  contrivance  or 
arrangement  to  draw  the  party  into  drink,'  or 
some  nnfair  advantage  taken  of  his  intoxication 
to  obtain  an  unreasonable  bargain  or  benetit  from 
him ;  then  it  is  the  duty,  yes  privilege,  of  a  court 
of  equity  to  defeat  a  fraud  practised  on  a  man 
whose  mind  is  weakened  or  darkened  bv  inteni- 
peranee.  And  the  reason  of  this  rule  is  very 
obvious,  for  the  fact  that  a  contract  has  been  en- 
tered into  gives  a  presumption  that  the  parties 
were  in  a  condition  to  consent ;  if,  however,  this 
presumption  is  rebutted,  and  it  appears  that  the 
person  was  in  a  state  of  complete  intoxication, 
the  law  will  hold  that  he  was  Incompetent  to 
enter  into  a  contract."  As  Sir  William  Grant, 
M.  R.,  remarked,  "  A  court  of  equity  ought  not  to 
give  its  assistance  to  a  person  who  has  obtained  an 
agreement  or  deed  from  another  in  a  state  of  intoxi- 
cation ;  and  on  the  other  hand,  ought  not  to  assist 
a  person  to  get  rid  of  any  agreement  or  deed 
merely  on  the  ground  of  his  having  been  intoxi- 
cated at  the  time.  I  say  merely  upon  that  ground ; 
as  if  there  was,  as  Lord  IIardwicke  expresses  it 
in   Cory  v.  Cory^  '  any  unfair  advantage  made  of 

'  Hotchkiss  V.  Fortson,  7  Yerg.  G7  ;  Harvey  v.  Peaks,  1 
Munf.  519 ;  Croppen  v  Ogilvie,  8  Ch.  (Ont.)  253. 
2  Menkins  v.  Lightner,  18  111.  283. 
n  Ves.  19. 


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Contracts. 


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his  situation ; '  or  as  Sir  Joseph  Jekyll  says,  in 
Johnmii  V.  Meddlecott^  '  any  contrivance  or  man- 
agement to  draw  him  into  drink,'  he  might  be  a 
proper  object  of  rehef  in  a  court  of  equity.  As 
to  that  extreme  state  of  intoxication  -which  de- 
prives a  man  of  his  reason,  I  apprehend,  that  even 
at  hiw  it  would  invahdate  a  deed  obtained  from 
hi!n  while  in  that  condition.'" 

One  may  successfully  avoid  his  contract  if  he 
proves  that  when  he  entered  into  it  he  was  in  such 
a  state  as  not  to  know  what  lie  was  doing,'  or 
unable  to  contract  intelligently.*  One  who  was 
under  the  influence  of  strong  drink  only  to  such 
an  extevit  that  he  did  not  clearly  understand  the 
busmess  he  was  attempting  to  transact,  and  no 
advantage  was  taken  of  his  excited  state,  cannot 
treat  his  agreement  as  either  void  or  voidable ;  * 
nor  can  a  man  who  remembered  his  act,  and  the 
accompanying  circumstances  on  the  following 
morning,  repudiate  his  promissory  note  made 
M'hen  intoxicated,  if  it  is  in  the  hands  of  a  hond 
fide  holder." 

Although  from  Sentanoe  v.  Pooled  it  might  be 

'  3  P.  Wms.  130,  note  a. 

5  Cooke  V.  Clay  worth,  18  Ves.    13  ;    see,  also,  Nagle  v. 
Baylor,  3  Drury  &  W.  64  ;  Sugd.  V.  &  P.,  ch.  4,  §  3. 
3  Johns  V.  FitcUey,  39  Md,  258. 
^  F»helan  v.  Gardner,  43  Cal.  306. 
8 Henry  v.  Retinour,  31  Ind.  136. 
« Caulkins  v.  Fry,  35  Conn.  170. 
■'3  C.  &P.  1. 


Contracts. 


oa 


inferred  that  an  iiidorseiiient  made  in  a  state  of 
complete  iiitoxifatiou  could  not  1x5  enforced 
against  the  drunkard  by  a  bond  JiJe  holder  with- 
out knowledge  of  the  circumstances,  such  a  rule 
must  rest  on  the  assumption  that  the  act  was  a 
miUity ;  but  as  Parsons  says:  "  It  is  difficult  to 
Bee  how*  one  could  indorse  a  l)ill,  or  a  note,  in 
such  a  way  that  its  appearance  would  excite  no 
suspicion,  and  yet  be  so  drunk  as  to  know  noth- 
ing of  wliat  Jie  was  doing ;  and  uidess  the  indorser 
was  utterly  incapacitated,  it  should  seem  tliat  a 
third  party  taking  the  note  innocently  and  for 
value  ousrht  to  hold  it  against  him.'  Bvles  lavs 
it  down  positively,  that  total  drunkenness  pro- 
ducing complete,  though  temporary  suspension  of 
reason,  is,  of  itself,  a  defence  to  an  action,  at 
least  to  one  by  a  person  who  has  notice."  "  It  is 
just  the  same,"  says  Aldekson,  B.,  "  as  if  the 
maker  had  written  his  name  on  the  bill  in  ids  sleep 
in  a  state  of  somnambulism."  '  In  Pennsvlvania  it 
has  been  held  that  the  drunkenness  of  the  maker 
of  a  note  cannot  be  set  up  as  a  defence  against  an 
innocent  holder  for  value.* 

Sometimes   equity  has    indirectly,  by  refusing 
relief,   sustained    agreements   which   have   been 

'  Parsons  on  Contracts,  vol,  I,  384  ;  Miller  v.  Finley,  12 
Am.  Rep.  306  ;  Caulkins  v.  Fry,  35  Conn.  170. 
«  Molton  V.  Camroux,  2  Ex.  487;  4  id.  17;  Byles,48. 
3  Gore  V.  Gibson,  13  M.  &  W.  623. 
•*  State  Bank  v.  McCoy,  69  Penn.  St.  204. 


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fiiirly  entered  into,  altlioiigli  the  party  was  in- 
toxicated at  the  time  ; '  and  especially  they  have 
refused  relief  when  the  agreement  was  to  settle 
a  family  dispute,  and  was  in  itself  reasonable." 
In  fact  it  would  appear  that  a  reasonable  family 
compromise  may  be  enforced  against  one  who 
was  drunk  when  he  entered  into  it;  so  greatly 
are  such  agreeinents  favored  by  equity/ 

Lord  Ellenborough  held  that  an  agreement 
made  by  an  intoxicated  man  is  void.*  Parsons, 
although  some  of  the  authorities  may  seem  to  be 
inconsistent  with  this  principle,  says  it  neverthe- 
less seems  to  be  the  true  one.'  English  writers, 
however,  appear  to  consider  such  a  contract  as 
voidable,  not  void." 

The  settlement  of  a  cause  of  action,  made 
when  one  of  the  parties  was  so  intoxicated  as  to 
be  incapable  of  understanding  it,  will  not  be 
binding  upon  him. 

The  plea  of  intemperance  can  be  used  only 
as  a  weapon  of  defence,  not  one  of  attack;  one 

'  Cook  V.  Clay  worth,  18  Ves.  13  ;  see,  also,  5  Barn.  &  C. 
170. 

2  Cory  V.  Cory,  1  Ves.  19. 

8  Eldon,  Ch.,  Stockley  v.  Stockley,  1  Ves.  &  B.  21. 

*Pitt  V.  Smith,  3  Camp.  33;  Fentoa  v.  Halloway,  1 
Stark   126 

*  Parsons  on  Contracts,  vol.  I,  385. 

*  Pollock  on  Contracts,  76  ;  Roblin*  v.  Roblin,  28  Grant, 
445. 


Contracts. 


95 


cannot  take  advantage  of  his  intoxication,  k)  as 
to  cheat  others.  If  one  made  liiniself  drnnk  with 
the  intention  of  avoiding  a  contract  entered  hito 
hy  him  wliile  in  that  state,  it  may  well  he  donhted 
whether  he  would  be  permitted  to  carry  this  fraud 
into  effect.  If  one  buys  goods  when  drunken, 
but  keeps  them  when  sober,  his  drunkenness  is 
no  answer  to  an  action  for  the  purchase-money.' 
The  intoxication  renders  the  contract  not  void 
but  voidable  only,  and  to  avail  as  a  defence 
the  agreement  must  have  been  rescinded  by 
restoring  whatever  was  received  as  the  considera- 
tion therefor."  But  if  the  action  is  not  for  goods 
sold,  but  on  a  written  instrument  given  to  se- 
cure the  payment  thereof,  intoxication  may  be 
a  good  defence,  even  though  the  defendant  kept 
and  used  the  goods." 

A  distinction  has  been  taken  between  express 
contracts  and  those  implied  by  law,  as  for  money 
paid,  goods  sold,  etc.  When  the  right  of  action 
is  grounded  upon  a  specific,  distinct  contract,  re- 
quiring the  assent  of  both  parties,  and  one  of 
them  is  incapable  of  assenting,  in  such  a  case 
Pollock,  C.  B.,  con  tends,  there  can  be  no  binding 
contract;  but  in  many  cases  the  law  does  not 
require  an  actual  agreement  between  the  parties, 

'  Gore  V.  GibHon,  13  M.  &  W.  623  ;  Parsons,  I,  385. 
'Joest  V.  Williams,   4i  Ind.    565;  but  see  Barkeley  v. 
Cannon,  4  Richardson,  136. 
» Reinskoff  v.  Rogge.  37  Ind.  209. 


m 


i'i 


njiiii'  I, 


t. 


'in 


96 


Contracts. 


but  implies  a  contract  from  th(  circn instances;  in 
fact,  the  law  itself  makes  the  contract  for  the 
parties.  Thus  in  actions  for  money  had  and  re- 
ceived to  the  plaintiff's  use,  or  money  paid  by 
him  for  the  defendant's  use,  the  action  may  lie 
against  the  defendant,  even  though  he  nuiy  have 
protested  against  such  a  contract.  So  a  trades- 
man, who  supplies  a  drunken  man  with  neces- 
saries, may  recover  the  price  of  them  if  the  party 
keeps  them  when  sober,  although  a  count  for 
goods  bargained  and  sold  would  fail.  Alderson, 
B.,  said,  "  A  party,  even  in  a  state  of  complete 
drunkenness,  may  be  liable  in  cases  where  the 
contract  is  necessary  for  his  preservation,  as  in 
the  crse  of  a  supply  of  actual  necessaries."  ' 

Pollock,  in  his  Principles  of  Contracts,  says 
that  three  distinct  theories  with  regard  to  the 
capacity  of  drunken  men  to  contract  have  at 
different  times  been  entertained  in  English  courts 
and  supported  by  respectable  authority.  The  first 
is  that  the  drunkenness,  or  lunacy,  of  the  party  is 
no  ground  whatever  for  avoiding  the  contract. 
This  is  confidently  stated  as  law  by  Coke  ;  Fitz- 
herbert  and  Bracton,  however,  are  opposed  to  it. 
The  next  theory  is  to  the  following  effect :  If  a 
man  is  so  drunk  (or  so  insane)  as  not  to  know 
what  he  is  about,  he  cannot  have  that  consenting 
mind  which  is  indispensable  to  the  formation  of 

•  Gore  V.  Gibson,  13  M.  &  W.  623. 


CONTKACTS. 


97 


a  contract,  and  liis  agreement,  is  tlierefore,  merely 
void.  But  if  his  mind  is  only  so  confused  or 
weak  that  he  cannot  be  said  not  to  know  what 
lie  is  about,  but  vet  is  incapable  of  fully  under- 
standing  the  terms  and  effect  of  his  contract,  and 
if  this  is  known  to  the  other  oartv,  then  ho  may 
indeed  contract,  but  the  contn.ct  will  be  voidable 
at  Ids  option  ;  on  the  ground,  not  of  his  own  in- 
capacity, but  of  the  other's  fraud  in  taking  ad- 
vantage of  his  weakness,  though  such  weakness 
be  short  of  incapacity.  This,  Mr.  Pollock  con- 
siders, was  doubtless  a  reaction  against  Coke's 
extravagant  dogmas.  This  doctrine,  he  says,  is 
quite  intelligible,  and  in  principle  there  is  nothing 
to  be  said  against  it.  But  the  distinction  between 
inability  to  understand  so  much  as  the  nature  of  a 
transaction  (which  would  make  it  wholly  \oid) 
and  inability  to  form  a  free  and  natural  judg- 
ment of  its  effect  (which  if  known  to  the  o.thcr 
party  would  make  it  only  voidable)  is  too  fine 
and  doubtful  to  be  convenient  in  practice.  Tlie 
third  opinion,  which  has  now  prevailed,  is  that 
the  contract  of  a  lunatic  or  drunken  man  who, 
by  reason  of  lunacy  or  drunkenness,  is  not 
capable  of  understanding  its  terms  or  forming  a 
rational  judgment  of  its  effect  on  his  interests,  is 
not  void  but  only  voidable  at  his  option  ;  and  this 
only  if  his  state  is  known  to  the  other  party. 

The  way  was  prepared  for  this  by  decisions 
establishing  an  exception  in  the  case  of  executed 
7 


4 


A\ 


i 


i'.' 


i> 


i    '  I 


I  ■  '] 


98 


CojvTKAcrrs. 


contnicts  to  tlie  supposed  rule  of  absolute  nullity, 
which  exception  may  be  stated  as  follows : 

When  a  contract  has  been  entered  into  in  good 
faith  with  a  i>erson  of  apparently  sound  mind 
who  is  not  known  to  be  otherwise,  but  who  is  in 
fact  of  unsound  mind,  and  the  contract  has  been 
performed  so  that  the  parties  cannot  be  replaced 
in  their  original  ])osition,  it  cannot  be  set  aside 
by  the  person  of  unsound  mind,  or  his  repre- 
sentatives. 

This  principle  was  long  ago  acted  ujwn  in 
e(piity,  but  without  any  decision  as  to  the  validity 
of  the  contract  in  law.'  The  judgment  which 
fully  settled  it  was  that  of  the  Exchequer  Cliam- 
ber  in  Melton  v.  Camroux.^  The  action  was 
brought  by  administrators  to  recover  the  money 
paid  by  the  intestate  to  an  assurance  and  annuity 
society  as  the  price  of  two  annuities  determinable 
■with  his  life.  The  intestate  was  of  unsound 
mind  at  the  date  of  the  purchase,  but  the  trans- 
actions were  fair  and  in  the  ordinary  course  of 
business,  and  his  insanity  was  not  known  to  the 
society.  It  was  held  that  the  money  could  not 
be  recovered ;  the  rule  being  laid  down  in  the 
Exchequer  Chamber  more  positively  than  in  the 
court  below,  and  in  these  terms :  '•  The  modern 
cases  show  that  wdien  that  state  of  mind  (lunacy 


'  Niell  V.  Morley,  9  Ves.  478. 

2  2  Ex.  487;  4  id.  17  ;  18  L.  J.,  Ex.  68,  356. 


Contracts. 


90 


or  druiikeiHie.xs,  even  if  such  as  to  prevent  a  man 
frojn  knowing  what  he  is  ahLUit)  was  unknown 
to  the  other  contracting  party,  and  no  a«lv.i!itai»e 
was  taken  of  tlie  lunatic  (or  <lrnnke!i  man),  tlie 
defence  c^'Jiiiot  prevail,  esj)ecijilly  where  the  com 
tract  is  not  nier'lv  executory,  but  executed  in 
Avhole  or  in  part,  and  the  partie  (cannot  be 
restored  altogether  to  their  original  positions." 

The  context  shows  that  the  statement  was  con- 
sidered equally  applicable  to  lunacy  and  drunken- 
ness, and  the  law  thus  stated  involves,  though  it 
does  not  expressly  enounce,  the  proposition  that 
the  contract  of  a  hinatic  or  drunken  man  is  not 
void,  but  at  most  voidalde.  The  general  rules 
as  to  the  rescission  of  a  voidable  contract  are 
then  applicable,  and  among  others  the  rule  that 
it  must  be  rescinded,  if  at  all,  before  it  has  been 
executed  so  that  the  former  state  of  things  can- 
not be  restored  ;  which  is  the  point  actually  de- 
cided. The  decision  itself  has  been  fully  ac- 
cepted  and  acted  on  both  at  law'  and  in  equity,' 
though  the  merely  voluntary  acts  of  a  lunatic, 
e.  g.j  a  voluntary  disentailing  deed  ( i  class  of 
acts  with  which  we  are  not  here  concerned),  re- 
main invalid.'  It  was  also  observed  that  the  deci- 
sion had  an  important  bearing  on  the  general 

'  Beavan  v.  McDonnell,  9  Ex.  309  ;  23  L.  J„  Ex.  94. 
«  Price  V  Berringion,  3  Mac.  &  G.  486,  495,  rev'g  S.  C, 
7  Ha.  394 ;  Elliott  v.  Ince,  7  D.  M.  &  0.  475, 488. 
8  Elliot  V.  Ince,  supra. 


1 


ill 


100 


CONTKACTS. 


'  '•;■ 


t:    ;!■ 


¥  5^f 


question  Avliether  "  a  conveyance  executed  (or  a 
contract  made)  by  a  lunatic  is  absolutely  void,  in 
tlie  absence  of  notice  or  fraud.'"  However  tlie 
complete  judicial  interpretation  of  tlie  result  of 
Molton  v.  Camroux  was  not  given  till  tlie  recent 
case  of  Maithews  v.  Baxter!^  The  declaration 
was  for  breach  of  contract  in  not  completing  a 
purchase ;  plea,  that  at  the  time  of  making  the 
alleged  contract  the  defendant  was  so  drunk  as  to 
be  incapable  of  transacting  business  or  knowing 
what  he  was  about,  as  the  plaintiff  well  knew  ; 
replication,  that  after  the  defendant  became  sober 
and  able  to  transact  business,  he  ratified  and  con- 
firmed tlie  contract. 

As  a  merely  void  agreement  cannot  be  ratified, 
this  neatly  raised  the  question  whether  the  con- 
tract were  void  or  only  voidable ;  the  court  held 
unanimously  (one  member  of  it  expressly  on  the 
authority  of  Molton  v.  Camroux)  that  it  was  only 
voidable,  and  the  replication,  therefore,  good.' 


»  8  Mac.  &  G.  at  p.  498. 

»L.  R,  8Ex.  133. 

'  Pollock,  Principles  of  Contract,  74  et  seq. 


Deeds. 


101 


CHAPTER  VI. 
DEEDS. 


Proof  of  particular  acts  of  excessive  drinking 
by  a  party  executing  a  deed  is  not,  it  seems,  suf- 
ficient ground  fo.*  setting  the  instrument  aside  in 
a  court  of  equity.'  At  common  law,  however, 
Lord  Ellenborougii  said  "  that  intoxication  is 
such  a  temporary  mental  incapacity  as  is  good 
evidence,  upon  a  plea  of  non  est  factum  to  a  deed, 
of  noil  concessit  to  a  grant,  and  of  ?i07i  assumj>sit 
to  a  promise  ; "  "  that  is  to  say,  that  drunkenness  is 
a  good  defence  at  law  to  an  action  on  a  covenant. 
It  appears  that  drunkenness  does  not  absolutely 
avoid  the  deed,  but  only  renders  it  voidable. 
Thus  it  has  been  held  that  if  one  executes  a  deed 
when  so  intoxicated  as  to  entitle  him  to  repudiate 
it,  he  may  ratify  it  when  sober,  in  this  way  sup- 
plying the  necessary  element  of  consent  and 
making  it  binding  upon  himself  and  his  repre- 
sentatives.* 

'  Smith  V.  Downing,  Ca.  temp.  Hardw.  00 ;  Cory  v. 
Cory,  1  Ves.  19. 

« Pitt  V.  Smith,  3  Camp.  N.  P.  33. 

8  Willoughby  v.  Moulton,  47  N.  H.  204 ;  Eaton's  Admrs. 
V.  Perry,  29  Mo.  96;  Barrett  v.  Buxton,  2  Ark.  167;  Mat- 
thews V.  Baxter.  L.  R.,  8  Ex.  132. 


•I 

■■  * 


1 


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■■■;  it- 


102 


Deeds. 


As  alreadv  stnted,  courts  of  equity  are  especially 
vigilant  in  protecting  intemperate  people  from 
those  who  either  draw  them  into  drink  or  take 
advantage  of  them  when  they  are  in  tlieir  cups. 
And  a  deed  improperly  obtained  will  be  set  aside 
at  the  instance  either  of  the  grantor  himself,  or 
of  his  representatives  if  Tie  departs  this  life  with- 
out having  an  o])portunity  of  seeing  tJie  folly  of 
his  transactions.^  But  the  intoxication  must  have 
been  such  as  to  have  deprived  the  grantor  of  un- 
derstanding." 

Dealings  between  tavern-keepers  and  persons 
given  to  intemperance  concerning  the  property 
of  the  latter  are  especially  scrutinized  with  the 
microscopic  eyes  for  which  equity  is  famous.  A 
judge  once  remarked  ^  that  no  one  is  more  help- 
less than  a  drunkard  is  in  the  hands  of  those  who 
obtain  his  confidence  and  to  whom  he  looks  day 
by  day  for  the  gratification  of  the  morbid  crav- 
ing which  has  possessed  him ;  and  the  modern 
doctrine  of  both  law  and  equity  is  against  giving 
up  even  a  poor  drunkard,  or  a  drunkard's  prop- 
erty, to  the  prey  of  the  rapacious  and  imprincipled. 
A  deed  improvident  in  its  terms,  obtained  by  a 
tavern-keeper  from  a  boarder  who  was  greatly 
addicted  to  intemperance^  cannot  be  maintained 

'  O'Connor  v.  Rerapt,  29  N.  J.  Eq.  156. 

'^Johnson  v.  Phifer,  6  Neb  401. 

8 McGregor  v.  Boiilton,  12  Grant  (Ont.),  288. 


Deeds. 


103 


in  equity  witliout  proof,  not  only  that  tlie  grantor 
was  sober  when  lie  executed  the  deed  and  that  he 
knew  the  nature  of  it,  but,  also,  that  the  transac- 
tion was  entered  into  by  him  without  the  influ- 
ence of  the  publican  and  under  competent  inde- 
pendent adv  ice. 

In  another  case  the  judge  remarked  that,  he 
understood  the  rule  in  equity  to  be  that  a  con- 
veyance by  an  intemperance  man  of  all  his  prop- 
erty to  a  tavern-keeper,  with  whom  he  lives  and 
at  whose  house  he  has  been  supplied  with  the 
drink  which  he  prefers  to  all  eaithly  objects  of 
desire  and  to  all  hopes  of  future  happiness,  is 
subject  to  the  same  rules  as  a  conveyance  to  a 
person  occupying  toward  the  grantor  a  relation 
of  confidence  or  influence.  The  danger,  as  a  pro- 
tection against  which  these  rules  have  been  laid 
down,  exists  in  a  much  larger  degree  in  the  former 
than  in  the  latter  case,  and  needs  to  be  guarded 
against  with  greater  caution.  Here  an  old  man, 
the  slave  of  drink,  executed  deeds  of  all  his  prop- 
erty, real  as  well  as  personal,  to  the  innkeeper 
with  whom  he  boarded,  and  accepted  in  consid- 
eration therefor  the  bond  of  the  latter,  under- 
taking to  support  him  the  remainder  of  his  life; 
a  consideration  wholly  inadequate.  Within  five 
months  after  the  transaction  the  poor  drunkard 
died ;  naturally  enough,  his  heirs  were  very  much 
dissatisfied  when  they  discovered  the  state  of 
affairs,  and  they  invoked  the  powerful  aid  of  the 


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104 


Deeds. 


Court  of  Chancery,  a  machine  akin  to  a  Nasinjth's 
steatn-liainnier  in  some  of  its  aspects,  for  it  strikes 
ever  with  exquisitely  graduated  force,  and  nothing 
is  too  big  and  nothing  too  small  for  it  to  deal 
with.  The  court  listened  favorably  to  their  ap- 
plication and  set  the  deeds  aside  and  ordered  the 
costs  to  be  paid  by  the  rapacious  publican.^ 

Again,  an  habitual  drunkard  of  three  score  and 
two  years  executed,  for  a  grossly  inadequate  con- 
sideration, a  deed  of  certain  land  in  trust  for  the 
keeper  of  the  tavern  with  whom  he  resided  and  by 
whom  he  was  supplied,  ad  Uhitn^n,  with  what 
the  celebrated  Kobert  Hall  called  "  liquid  fire  and 
distilled  damnation."  Then  the  man  made  a 
will  devising  the  same  property  to  his  brother, 
and  then  left  for  that  country  from  "  whose 
bourn  no  traveler  returns."  The  court,  at  the 
instance  of  the  devisee,  set  aside  the  conveyance 
and  ordered  the  dispenser  of  strong  drink  to  pay 
all  the  costs  of  the  suit.*  A  man,  who  by  habit- 
ual drunkenness  had  been  reduced  from  the  pos- 
session of  a  remarkably  strong  body  and  mind, 
and  the  respect  of  all  who  knew  him,  to  a  state 
of  imbecility,  made  a  deed  of  valuable  property 
to  an  unnatural  son  who  had  been  in  the  habit  of 
supplying  him  with  the  liquid  poison  that  de- 
graded him  below  the  level  of  the  beast.     The 

'  Hume  V.  Cook,  16  Grant  (Ont.),  84. 
2  Clarkaou  v.  Kitson,4  Grant,  (Ont.),  244. 


Deeds. 


105 


father  afterward  gave  another  deed  to  tlie  wife 
of  tlie  same  son.  A  bill  was  filed  to  set  aside 
these  gifts  for  fraud  on  the  part  of  the  son  and 
incapacity  on  tlie  part  of  the  father ;  but,  after 
the  suit  had  gone  on  for  some  time,  the  son  again 
obtained  an  improper  iniiuence  over  the  old 
man's  mind  and  secured  from  him  a  release  of  the 
action,  without  the  intervention  of  any  legal  ad- 
viser to  look  after  the  interests  of  the  father. 
The  Court  of  Chancery,  however,  caused  right  to 
be  done  and  justice  to  triumph  by  setting  aside 
the  conveyances  and  the  release,  with  costs.' 

On  the  other  hand,  where  another  victim  of 
intemperance  made  a  deed  to  his  wife  of  his 
property,  understanding  fully  what  he  was  doing, 
though  without  having  any  professional  advice, 
the  court  refused,  at  the  re(|uest  of  the  heir-at- 
law,  to  interfere.  The  judge  considered  that  no 
advantage  had  been  taken  of  the  man's  intem- 
perate habits  to  procure  the  deed  from  him;  be- 
sides he  had  no  olive  branches  'round  about  his 
table."  And  where  an  old  man  of  seventy-six 
years,  who  had  become  addicted  to  the  use  of  in- 
toxicating drinks,  upon  the  eve  of  a  second  mar- 
riage, executed  a  deed  in  the  nature  of  a  testa- 
mentary disposition,  the  court  refused  to  make  a 
decree  setting  it  aside,  as  there  was  no  proof  of 

1  Nevills  V.  Nevills,  6  Grant,  (Ont),  131. 
^  Corrigaii  v.  Corrigau,  15  Grant  (Ont.),  341, 


M 


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H 
tf  i,  I 


I 

"if' 

ill 

a. 


106 


Deeds. 


it   I'M 


i'-     t 


f?i:W '.p' 


undue  influence  or  of  precipitanej"  of  purpose, 
jind  the  old  man  luid  shown  practical  judgment 
bv  reservinir  to  himself,  bv  the  deed,  absolute 
control  of  tlie  ])roperty  for  his  life.' 

In  one  case,  where  a  conveyance  was  given 
without  consideration,  and  while  the  grantor  was 
to  the  grantee's  knowledge  not  himself,  owing  t<j 
intoxication,  the  court  while  setting  aside  the  in- 
strument did  so  without  costs,  and  allowed  the 
grantee  taxes  he  had  paid  upon  the  property 
(with  interest),  as  he  had  not  connived  at  the 
drunkenness  and  had  merely  sought  —  being  a 
relation  —  to  save  the  property  from  being 
squandered." 

A  bill  was  filed  to  obtain  the  specific  perform- 
ance of  an  agreement  to  purchase  certain  lands  ; 
the  purchaser  rued  his  bargain,  and  showed,  as  a 
defence  to  the  relief  asked,  that  at  the  time  he 
was  induced  to  sign  the  agreement  to  purchase  he 
was  in  a  state  of  intoxication,  and  that  the  stipu- 
lated price  for  the  lands  was  exorbitant.  The 
court  refused  to  compel  him  to  carry  out  the 
contract.^ 


'  Wiley  V.  Ewalt,  60  111.  26. 

2  Warnock  v.  Campbell,  35  N.  J.  Eq.  485. 

3  Scbofield  V.  Tuminonds,  6  Grant  (Or'..),  568. 


w 


ILLS. 


107 


CHAPTER  VII. 
WILLS. 


Can  a  drunkard  make  a  will  ?  The  general  rule 
of  law  with  regard  to  drunkenness  and  testa- 
mentary capacity  is  very  similar  to  that  which  we 
have  already  discussed  in  connection  with  con- 
tracts. 

Coke  classes  the  drunkard  with  the  non  coiii- 
potes.  Intemperance  is,  in  truth,  temporary  in- 
sanity ;  the  brain  is  incapable  of  performing  its 
proper  functions ;  there  is  temporary  mania  — 
but  that  species  of  derangement,  which,  when 
the  exciting  cause  is  removed,  ceases;  sobriety 
brings  with  it  a  return  of  reason.  Swinburne 
says,*  "  he  that  is  overcome  by  drink  during  the 
time  of  his  drunkenness  U  to  be  compared  to  a 
madman,  and,  therefoi'e,  if  he  makes  his  testament 
at  that  time,  it  is  void  in  law  ;  that  is  where  he 
is  so  excessively  drunk,  that  he  is  utterly  deprived 
of  the  use  of  reason  and  understanding,  otlierwise 
albeit  his  understanding  is  obscured  and  his 
memory  troubled,  yet  he  may  make  his  will 
being  in  that  case." 


m 


■1 
w  j 


'/.'.Hi 


1  Pt.  3  and  C. 


m 


Hi 


108 


Wills. 


ill' 


"Where  tlie  testator  was  habitually  addicted  to 
the  use  of  spirituous  liquor,  under  tlie  actual  ex- 
citement of  wiiich  he  talked  and  acted  in  most 
respects  like  a  nuidinan,  it  was  held  that  as  he 
was  not  when  the  will  was  executed  under  the 
excitement  of  strong  drink  he  was  not  to  be  con- 
sidered as  insane.^  The  presumption  is  in  favor 
of  the  will  when  it  is  shown  that  the  man  is  not 
intoxicated  at  the  time  he  signs  it,  and  that  pre- 
sumption is  strengthened  or  impaired  by  the 
internal  evidence  of  its  contents.*  A  dnudvard 
is  oidy  incompetent  to  act  when  at  the  time  of 
the  act  challenged  his  understanding  was  clouded, 
or  his  reason  dethroned  by  actual  intoxication." 

The  effect  of  drunkenness  in  producing  such  in- 
capacity as  will  invalidate  a  will  is  precisely  the 
same  as  that  of  any  other  mental  obscuration 
from  whatsoever  cause  arising.*  Although  drunk- 
enness of  itself  is  no  legal  exception  to  the  valid- 
ity of  a  will,  still  if  habitual  intoxication  has  be- 
sotted a  man's  senses  and  destroyed  his  under- 
standing his  will  will  not  be  good.'     And  if  the 

'  Starrett  v.  Douglas,  2  Yeates,  48. 

'  Ayrey  v.  Hill,  3  Add.  206  ;  Billingliurst  v.  Vickers,  1 
Phill.  191  ;  Dyers  v.  Coldwell,  2  Lee,  120  ;  Anderson  v. 
Welch,  1  id.  577  ;  Ilandey  v.  Stacey,  1  F.  &  F.  274. 

«  Peck  V.  Carey,  27  N.  Y.  9  ;  Gardiner  v.  Gardiner,  22 
Wend.  526  ;  Duffield  v.  Morria,  2  Harr.  385. 

*  Bedfield  on  Wills,  161. 

^  Starrett  v.  Douglas,  2  Yeates,  48  ,  Duffield  v.  Kobeson, 
2  Harr.  375. 


'41 


Wills. 


100 


drunkenness  is  so  profound  as  to  deprive  the  in- 
dividual of  a  disposinj^  mind,  it  will  invalidate 
any  will  made  during  its  continuance  just  as 
much  as  the  mental  disease  which  is  the  result  of 
a  long  course  of  habitual  indulgence.  Redtield 
considers  that  it  can  make  no  difference  in  re- 
gard to  the  capacity  to  execute  aAvill  whether  the 
understanding  is  permanently  gone  from  habitual 
inebriety,  or  temporarily  from  an  occasional  or 
accidental  lit  of  drunkenness.^ 

Mere  proof  of  drunkenness  does  not  invalidate 
a  will,''  for  the  v^arious  degrees  of  drunkenness 
produce  various  degrees  of  capacity,  and  the  law 
in  its  wisdom  has  not  seen  fit  to  set  up  any  par- 
ticular mental  standard  for  testators,  but  saying 
that  all  men  with  sufficient  capacity  to  make  a 
will  may  do  so,  leaves  the  question  of  the  effect 
of  the  drunkenness  to  be  determined  in  each  par- 
ticular case.  Even  habitual  drunkenness  is  not 
of  itself  sufficient  to  in  validate  a  will.' 

A  testator's  habits  of  intemperance  were  such 
that  his  wife  and  children  were  compelled  to 
abandon  his  residence  about  twelve  or  thirteen 
years  before  he  died  ;  after  which  his  health  be- 
came completely  undermined  by  his  indulgence 
in  strong  drink.     About  three  weeks  before  his 


4ri 


:    •^i  ' 


m 


'  Redfield  on  Wills  161 

«  Shelford  on  Lunatics,  274,  304. 

3  HigUt  V.  Wilson,  1  Dallas.  94. 


i  h 


no 


Wills. 


death,  and  while  confined  to  bed  from  weakness 
and  general  debility,  acting  on  the  suggestions  of 
persons  about  him,  he  obtained,  through  the  inter- 
vention of  his  brother-iu-hiAV,  whose  children  took 
a  valuable  interest  under  his  will,  tho  services  of  a 
solicitor,  who  took  instructions  from  him  and  jjre- 
pared  his  will  in  accordiince  therewith ;  which  will 
was  executed  by  him  in  presence  of  such  Solicitor 
and  another  witness.  By  his  will  he  deprived  liis 
own  family  of  the  greater  portion  of  his  property, 
devisiiiii:  it  to  the  children  of  his  brother-in-law. 
Medical  evidence  was  adduced  tending  to  show 
that  from  the  long-continued  habit  of  drinking, 
in  which  the  testator  had  indulged,  his  mind  was 
m  such  a  state  as  to  render  him  unfit  to  make  a 
will.  On  the  other  hand,  a  medical  practitioner, 
who  was  attending  him  at  and  subsequent  to  the 
time  the  will  was  executed,  swore  he  was  compe- 
tent to  do  so,  and  the  professional  gentleman  who 
prepared  the  will  was  of  that  opinion.  The 
court  (Spragge,  C),  on  a  balance  of  the  evidence, 
decided  in  favor  of  the  testamentary  capacity,  so 
far  as  the  plea  of  intemperance  was  concerned. 
The  learned  chancellor  remarked,  "  If  the  med- 
ical witnesses  had  said  the  thing  w\as  impossible 
(that  is,  the  existence  of  testamentary  capacity),  I 
must  still  have  exercised  my  judgment  between 
facts  sworn  to  and  matters  of  scientific  opinion  ; 
and  facts  may  be  established  by  such  clear  and 
convincing  testimony,  in  the  face  of  opinion  evi- 


ess 

I  of 
er- 
)ok 


Wir, 


r.s. 


Ill 


dt'Mce  by  sclent  iiic  men,  that  they  inuf^t  I^oacceptetl 
us  estabhslied,  althongli,  in  the  opinion  oi*  tliose 
well  qualiiied  to  form  a  sclentilie  opinion,  they 
jire  held  to  be  improbable  or  even  im])ossible.'*  ' 

The  question  is,  not  whether  the  testator,  when 
makin^iif  liis  will,  knew  that  he  was  giving  all  his 
property  to  some  and  excluding  others  from  any 
share  of  it,  but  whether  he  was  at  that  time  capa- 
ble of  recollecting  who  those  relations  were  that 
he  was  exchiding,  of  understanding  their  respect- 
ive claims  upon  his  regard  and  bounty,  and  of 
deliberately  forming  au  intelligent  purpose  of  ex- 
cluding them  from  any  share  of  his  jtroperty. 
If  he  had  not  the  capacity  required,  the  propriety 
of  the  disposition  made  by  the  will  is  a  matter  of 
no  importance.  If  he  had  it,  the  injustice  of  the 
exclusion  would  not  affect  the  validity  of  the 
disposition,  though  the  justice  or  injustice  of 
the  disposition  might  cast  some  light  upon  the 
question  of  his  capacity.'^ 

The  delirium  of  druidvenness  is  short  lived, 
it  is  more  strictly  temporary  than  even  the  de- 
lirium of  disease  and  when  the  fit  is  off,  the 
patient  is  at  once  restored  to  perfect  reason, 
and  there  is  no  legal  presumption  of  the  con- 
tinuance of  the  delirium  since  it  ceases  at  once 


\  '} 


'  Bell  V.  Lee,  28  Grant  (Ont.),  150;  Waterhoiise  v.  Lee, 
10  id.  180. 
2  Banks  v.  Good  fellow,  L.  R ,  5  Q.  B.  551. 


112 


Wills. 


almost,  unless  the  exciting  cause  h  renewed ;  so 
one  who  is  addicted  to  the  frequent  and  injurious 
use  of  ardent  spirits  may  execute  a  perfectly 
valid  will,  if  he  has  hicid  and  sober  intervals, 
and  that  will  is  tlie  result  of  his  free  choice,  in- 
fluenced only  by  reason  and  atfection,  and  un- 
influenced by  poison  or  disease.'  In  tliis  there 
is  a  distinction,  in  so  far  as  law  is  concerned  ^e- 
twcen  drunlvenness  and  insanity,  a  distinction 
which  is  well  brought  ont  by  Sir  John  Nicholl. 
In  the  case  of  insanity,  the  disease  may  be  latent, 
but  in  that  of  drunkenness,  if  it  is  to  affect  the  will 
at  all,  it  must  be  actual ;  it  must  manifest  itself 
in  excitement,  and  excitement  in  such  a  degree 
as  to  vitiate  the  act  done  :  "  For,  I  suppose,"  he 
remarks,  "  I  suppose  it  will  be  readily  conceded, 
that  under  a  mere  slight  degree  of  that  excite- 
ment, the  memory  and  the  understanding  may  be 
in  substance  as  correct  as  in  the  total  absence  of  an  v 
exciting  cause.  Whether,  where  the  excitement 
is  proved  to  have  actually  subsisted  at  the  time 
of  the  act  done,  it  did  or  did  not  subsist  in  the 
requisite  degree  to  vitiate  the  act  done,  must  de- 
pend in  each  case  upon  due  consideration  of  all 
the  circumstances  of  that  case  in  particular ;  it 
belonging  to  a  description  of  cases  that  admits 
of  no  more  definite  rule  applicable  to  the  deter- 

'See  Temple  v.  Temple,  Hen.  &  Munf.  476;  Black  v. 
Ellis,  3  Hill,  68  ;  Shelf,  on  Lunacy,  376. 


i  I 


AVn.Ls. 


h;5 


iiiiiiiitiou  of  tlu'iii  tlian  tlu;  ono  I  liavo  su^'i'-csttMl, 
tliiit  I  Jim  siwaro  ol'.'"  *  Wlioiv  (IninUt'iiiu'ss  is 
reliL'd  uimmi  as  evidence  of  a  want  of  testament 
arv  fapaeity,  if  the  testator's  lial»its  arc  notsncli 
as  to  render  him  li;.'  iinally  incompetent  to  trans- 
}ict  bnsiness  the  i)nnh'n  <tt'  proof  of  incapacity, 
oi)  tlic  gronndof  casnal  intoxication,  is  n})on  those 
who  desire  to  invalidate  the  vvilL'' 

In  a  nisi  ^>/'/'<.y  case  which  was  tried  before 
Lord  Camimjkij-,  the  will  was  impeached  on  th«; 
gronnd  that  the  testator's  mind  was  impaired  l>y 
driidving,  and  that  he  was  under  the  undue  in- 
Huenceof  the  devisee  or  his  family.  It  appeared 
that  the  testator  had  been  addicted  to  driid-cing, 
and  liad  had  delirium  tremens  a  few  days  before 
the  will  was  executed,  and  tliat  the  will  was 
drawn  up  by  the  son  of  the  devisee,  at  his  house, 
he  beinii;  an  old  friend  of  the  testator.  It  was 
held,  that  the  question  was  whether  the  testator 
was  sane  and  sensible,  and  able  to  understand 
the  nature  and  contents  of  his  will  at  the  time  it 
was  executed,  and  that  if  the  testator  had  really 
requested  the  son  of  the  devisee  to  draw  up  the 
will,  and  it  "was  his  voluntary  and  spontaneous 
act,  not  under  constraint,  and  free  from  force 
or  fraud,    and    from    imposition   and  importun- 

'  Avrey  v.  Hill,  2  Add,  20G  ;  Jarmau  on  Willa,  I,  p.  5t; 
see  Corey  v.  Corey,  i  Vea.  Sen.  19. 

-  Andres  v.  Keller  &  Miller.  3  Green  Ch.  604. 

s 


;'l 


i 


'■} 


'• 


;  ti 


til! 


m 


i' 


::i 


114 


Wills. 


it  V,  tliorc  was  no  niulue  influence,  and  the  will 
was  valid.'  In  a  ease  which  came  before  the 
New  York  Court  of  Appeals,  and  which  is  re- 
ferred to  in  Dr.  Redfleld's  work  ou  the  Law  of 
Wills,"  it  was  held  that  neither  intoxication,  nor 
the  actual  stimulus  of  intoxicating  spirits  at  the 
time  of  executing  the  will,  incapacitates  the  tes- 
tatoi",  uidess  the  excitement  be  such  as  to  disorder 
his  faculties,  and  pervert  his  judgment.  It  was 
further  held,  that  the  dispositio.ns  of  the  will  may 
he  considered  for  the  purpose  of  determining  the 
testator's  condition  at  the  time  of  executimj;  it. 
But  in  order  to  defeat  the  will  upon  this  ground 
alone,  such  dispositions  must  not  only  be  in  some 
deijree  unreasonable  and  extravagant,  but  thev 
must  depart  so  far  from  what  would  be  regarded 
as  natural,  as  to  appear  fairly  referable  to  no 
other  cause  than  a  disordered  intellect.  The  will 
of  a  confirmed  drunkard,  although  executed  after 
a  protracted  del)auch,  and  although  the  testator 
had  drank  several  times  during  the  day,  as  he 
was  not  intoxicated  at  the  time  of  executing  it, 
was  confirmed." 

Actual  insanity  may  often  be  latent,  but  there 
can  scarcely  be  such  a  thing  as  latent  ebriety, 
and  so  where  a  will  is  sought  to  be  upset  on  the 

'  Tlandley  v.  Stacey,  1  F  &  F.  574. 

•^3(1  ed.,*lG3, 

•^  Peck  V.  Carey,  37  N.  Y.  9. 


i 


AV^ILLS. 


11.-) 


<:Toniul  of  mental  incapacity  arising  from  mania 
j»i-()duced  by  drinkin;:^,  all  that  those  sustaininu' 
the  will  must  prove  is,  the  absence  of  excitement 
at  the  time  of  tlie  execution,  or  at  least  the  ab- 
sence of  excitement  in  anv  such  deo^ree  as  would 
vitiate  the  act  done.  In  one  case  where  excess- 
ive drinkin<j^  and  eccentricity  were  proved,  and  the 
altestin*^  witness  could  speak  of  nothing*  but  the 
mere  execution,  and  where  the  attorney  who  pre- 
pared the  will,  and  in  whose  office  it  was  executed, 
was  himself  named  as  executor  and  residuary 
legatee,  still  the  will  was  confirmed  as  certain 
papers  in  the  testator's  handwriting  showed  his 
capacity  and  a  knowledge  of  its  contents.^ 

Intemperance  is,  in  truth,  temporary  insanity  ; 
the  brain  is  incapable  of  performing  its  proper 
functions.  But  where  no  fixed  and  settled  de- 
lusion is  shown,  and  consequentl}'  no  decided  in- 
sanity, and  an  extravagant  act  of  a  party  can  be 
accounted  for  by  the  excitement  of  liquor,  while 
at  all  other  times  his  mind  was  sound ;  in  order  to 
avoid  a  will  made  by  him,  it  must  be  proved  ♦^hat 
he  was  so  excited  by  liquor,  or  so  conducted  him- 
self during  the  particular  act,  as  to  be  at  the 
moment  legally  disqualified  from  giving  effect  to 
it."  It  seems  that  Lord  Mansfi.'ld  considered 
it  a  misdemeanor  for  jiersonsto  obtain  by  artifice 


:1 

'■■■* 

•  if 
*'* 

[1 


i;: 


>  Wheeler  v.  Alderaon,  3  ITagg.  602-608. 
*  Wheeler  v.  Alderson,  supra. 


*» 


J..: 


116 


Wills. 


a  wlW  from  n  woman  greatly  addicted  to,  and  al- 
most destroyed  by  liquor.' 

When  the  law  says  that  to  render  a  will  valid, 
it  nnist  be  executed  in  the  presence  of  one  or 
more  witnesses,  the  presence  must  not  be  a  mo'c 
bodily  presence,  but  a  mental  presence  as  well : 
the  law's  demands  will  not  be  satisfied  if  a  wit- 
ness is  insane  or  intoxicated,  asleep  or  inattentive 
at  the  time  the  will  was  executed." 

I  Rex  V.  Wrio-ht,  3  Burr.  1099. 
*  Taylor  on  Evidence,  9G7. 


Insuuance. 


117 


;|  I 


CHAPTER  YTII. 


INSUKANCE. 


The  question  of  intenipcraiu'e  comes  up  before 
the  courts  very  frequently  in  considering  claims 
upon  life  and  accident  insurance  policies. 

Many  policies  contain  stipulations  to  the  effect 
that  the  company  issuing  them  will  not  be  liable 
where  the  holder  has  died  from  intemperance,  or 
been  injured  while  intoxicated,  or  been  habitu- 
ally intemperate.  A  "  druidven  fellow"  is  not 
considered  a  good  life  by  insurance  coinpanies;^ 
and  as  to  wiiat  is  a  drunken  fellow,  Sir  Walter 
Scott,  in  apologizing  for  a  druidven  clergyman, 
said  :  "  The  crime  of  drunkenness  consists  not  in 
a  man  bein<;  in  that  state  twice  or  thrice  in  his 
life,  but  in  the  constant  and  habitual  ])ractice  of 
tlie  vice ;  the  distinction  between  eh/'it/.s  and 
('hriosiis  being  founded  on  common  sense  and 
recognized  by  law." 

An  accident  policy  contained  a  condition  pro- 
vidinii:  that  no  claim  should  be  made  thereunder 
"  where  the  death  or  injury  may  have  happened 
while  the  insured  was,  or  in  consequence  of  his 

'  Weskett,  Insurance.  335. 


tni 


1      ft; 


11 


I 


^H 


i;     I: 


118 


l^Sl  liAN'CE. 


I 


ill 


m 

h 


m 


having  Ijcen,  under  tlio  intluence  of  intoxicating 
drink."  Tiio  insured  M'as  dining  with  a  friend 
and  twitted  liini  with  being  a  bad  inarksnian,  sav- 
'•  \k\\\   cannot    slioot  a  froiz;."     Tlie   friend 


mg,  ••  1  ()U 

replied,  "  T  can  shoot  vour  ear,"  '*  I  will  let  you 
try  for  ten  cents "'  was  the  foolish  reply.  The 
shot  was  Hred,  and  hit  tlie  insured,  not  on  the 
ear  but  in  a  vital  part,  and  fatally.  "When  an 
action  was  brought  upon  the  policy  it  was  held 
that  if  the  death  occurred  while  the  insured  was 
nnder  the  influence  of  intoxicating  drink  the 
policy  was  avoided,  without  regard  to  the  ques- 
tion whether  tliat  state  was  the  natural  and  rea- 
sonable cause  of  the  death,  or  in  any  manner 
contributed  thereto.  The  court  also  thought 
that  a  provision  in  a  j)olicy  such  as  the  one  men- 
tioned was  proper  and  reasonable.^ 

A  proximate  cause  of  an  eifect  is  tliat  which 
immediately  precedes  and  produces  it,  as  distin- 
guished from  the  remote,  mediate  or  predisposing 
cause;  although,  when  several  causes  contribute 
to  produce  death  it  may  be  difficult  to  determine 
which  is  the  remote  and  which  the  innnediate 
cause.  Yet  the  difticulty  does  not  remove  the 
necessity  of  the  determination.  If  a  policy  pro- 
vides that  it  is  to  be  void  if  the  insured  should 
"die  by  reason  of  inteM])erance,  from  the  use  of 
intoxicating  liquor;"   to  enable  the  company  to 

•  Shader  v.  Rway.  Pass.  Ass.  Co.,  60  N.  Y.  441. 


i/" 


In 


SURANCE. 


119 


8iic'ce8sl'ully  plead  such  a  defence  it  iiiiist  he  shown 
that  intemperance  was  the  paramount  and  proxi- 
mate cause  of  the  deatli.  If  it  was  only  a  coii- 
t-'butory  caiue,  an«l  not  the  sole,  or  at  least  para- 
mount cause,  the  defence  cannot  avail;  neitlier 
intemperance  combined  with  other  causes,  nor 
intemperance  as  a  secondary,  remote  and  predis- 
posing cause,  will  avoid  the  policy.  Habits  of 
intemperance,  doubtless,  have  a  tendency  to 
shorten  life;  but  if  on  this  ground  payment  of  a 
loss  could  be  resisted,  no  insurance,  though 
knowingly  taken  on  the  life  of  an  intemperate 
man,  would  be  '^^f  any  value.  To  entitle  the 
company  to  succeed  it  should  appear  that  intem- 
perance was  the  cause  of  death,  so  recently  prior 
to  the  death,  and  having  such  an  obvious  connec- 
tion with  it,  that  the  death  may  be  clearly  trace- 
able to  it  and  fairly  be  said  to  have  been  produced 
by  it.'  So,  as  it  appeared  in  a  case  tlia*:  the  in- 
sured, when  in  a  fit  of  delrnum  tremens^  escaped 
from  those  in  whose  charge  he  was,  and,  scantily 
clothed,  ran  out  into  the  street,  where  he  was 
exposed  to  inclement  weather ;  and  the  exposure, 
combined  with  the  intemperance,  brought  on 
congestion  of  the  lungs,  which  ended  in  death. 
The  court  held  that  tlie  defence  raised  under  the 
clause  exempting  the  company  if  death  ensued  l)y 
reason  of  intemperance  from  the  use  of  intoxicat- 


f^- 

T 

■ 

M 

'  r 

.; 

i    ■  . 

i    r 

1      : 

'  Miller  v.  Mutual  Ben,  L.  Ihp.  Co  ,  31  Iowa,  210. 


Insukan(jk. 

ing  liquor  mnst  snceeerl ;  wlietlier  the  congestion 
was  caused  by  the  exposure  or  the  intenij)erance, 
they  were  both  tlie  direct  consequences  of  intem- 
]»erate  use  of  intoxicating  li(iuor,* 

Til  anotlier  case,  wliere  the  deceased  liad  been 
insured  in  the  same  company,  tlie  same  defence 
was  raised,  and  there  was  proof  that  the  insured 
liad  rnania  d  pota^  caused  by  intemperance  from 
the  use  of  intoxicating  liquor,  and  that  such  dis- 
ease is  often  fatal.  There  was  also  evidence  that 
morphine  and  other  medicines  had  been  admin- 
istered in  large  quantities  to  the  insured  by  his 
attendant  physician.  The  claimants  insisted  that 
death  had  resulted  directlvand  innnediatelvfrom 
the  excessive  quantities  of  opium  thus  admin- 
istered, and  not  from  the  disease  or  the  exces- 
sive drinking.  At  the  trial  the  court  rightly 
instructed  the  jury,  that  if  the  disease  was 
delirium  tremens  or  mania  a  potu^  or  other 
disease  resulting  from  intemperance  from  the 
use  of  intoxicating  liquors,  and  that  disease, 
though  not  riecessarily  mortal,  yet  from  want 
o^  helpful  application,  or  neglect  of  ])roper  care 
y-  ;  i'^mtment,  produced  exhaustion  or  fever  and 
vK  .soquont  death,  the  death  would  properly  be 
eonsiderci]  as  resulting  from  the  intemperance, 
even  if  the  disease  was  not  so  mortal  in  itself  but 
that  with  good  care  and  under  favorable  circum- 
stances the  insured  might  have  recovered  ;  yet 

'  84  Iowa,  222. 


wm 


In!*1  UAXOK. 


121 


!  i 


if  i*^  became  the  cause  of  death  hy  reason  of  the 
most  etticacious  inode  of  treatment  not  liavinir 
])een  a(lo])te(l,  then  tlie  i>laintilf  would  not  he  en- 
titled to  i-ecover.  If  the  death  was  caused  bv 
any  drug  administered  to  him  in  the  course  of 
medical  practice,  for  tlie  purpose  of  cure,  ii\  suf- 
ficient quantity  to  ])i'oduce  death,  and  death  was 
the  effect  of  the  drug  and  not  of  the  disease,  then 
in  such  case,  the  death  could  not  pro])erly  he  con- 
sidered as  resulting  from  the  intemperance  in  the 
use  of  intoxicating  liquor,  and  the  plaintiff  upon 
that  branch  of  the  case  would  be  entitled  to  re- 
cover.^ 

Every  one  who  has  insured  his  life  knows  the 
numerous  questions  which  are  asked  touchiug  not 
oidy  his  sisters,  his  cousins  and  his  aunts,  his 
parents  and  grandparents,  but  also  his  very  aches 
and  pains  and  i)rivate  liabits.  Falsehood  in  the 
answers  to  these  questions  is  as  fatal,  as  far  as  the 
life  of  the  policy  he  may  get  is  concerned,  as  it 
was  to  Ananias  and  Sapphira.  Equivocation  in 
the  answers  as  to  health  and  habits  especially  is 
as  disastrous  as  falsehood.- 

Generally,  by  the  contract  Ijetween  the  insui*- 
ers  and  the  insured,  the  replies  given  are  war- 
ranted to  be  true,  and  it  is  agreed  in  the  ])olicy, 
that,    if  they   are    untrue  or   deceptive   in  any 


'«, 


,( ' 


'  Ranney  v.  Mut.  Ben.  Life  Ins.  Co.,  May  on  bis.,  333. 
^  Sniitli  V.  AiWv.x  Life  Ins.  Co.,  49  X.  Y.  '211. 


IXSIIKANCK. 

respect,    tlie   contrjict    sliall   bo    void    and  of  no 

The  parties  have  a  right  tlins  to  agree  if  tliey 
f'lioost',  and  if  they  do  they  are  bound  by  the 
airreenient ;  and  if  the  answers  are  untrue  the 
poh'ey  is  avoided,  altliough  there  are  no  inten- 
tional or  fraudulent  inisstateni"nts.  Henee  the 
necessity  of  understanding  the  questions  asi-:ed, 
and  tlie  conditions  upon  which  tlie  policy  issued. 

A  man  who  was  addicted  to  periodical  and 
habitual  sprecing  represented, when  aj)plying  for 
an  insurance,  that  he  was  temperate  in  the  use  of 
intoxicating  liquor.  On  an  action  being  brought 
for  the  amonnt  insured,  the  conrt  in  Ohio  held 
that  he  had  been  guilty  of  such  misrepresenta- 
tion as  avoided  the  policy ;  and  most  people  will 
probably  say  that  the  court  was  abont  right.'  A 
man  cannot  truly  be  said  always  to  have  been 
sober  and  temperate,  who  though  usually  of  sober 
and  tempemte  habits,  occasionally  indulges  in 
druidvcn  debauches,  which  sometimes  terminate 
in  deltnum  tremens^ 

A  warranty  that  the  insured  is  of  sober  'a\\k\ 
temperate  habits  means,  that  at  the  time  of  the 
insurance  and  foi*  snch  a  reasonable  time  prior 
thereto  as  would  allow  of  a  man  evincing  a  lial^it, 
the  insured   was  a   tenq)erate  man.     And  how 

'  Mut.  Ben.  las.  Co.  v.  HolterhoJf,  3  Ciiic.  (Ohio)  379. 
■^  Ibid. 


m 


In«i  KANri:. 


123 


long  docs  it  take  to  jictjuiro  a  liiil)it  i  Tho  autliori- 
ties  differ  on  this  point  ;  Co\vi»or  says,  "  Habits 
arc  soon  assumed."     Tlio  Latin  writer  remarks, 

"When  tlie  matter  comes  before  a  jury,  in  an  ac- 
tion by  the  rej^resentatives  of  the  insured  to  re- 
cover the  amount  of  the  policy,  tlio  question  is  not 
wliether  the  deceased  was  intemperate  to  such  a 
degree  as  to  injure  his  healtli,  but  simply  M'as  he 
sober  and  temperate.  Tlie  insurers  have  a  right 
to  protect  themselves  by  guarding  against  the 
extra  risk  they  run  avIkm-o  the  insured  has  perni- 
cious habits;  and  if  one  says  that  he  is  habitually 
sober  and  temperate  when  he  is  an  habitual 
drunkard,  he  loses  his  rights  under  the  policy, 
even  though  his  health  may  be  good  and  his 
constitution  unimpaired  and  uiuiffected  by  his 
habits.' 

"  What  is  meant  by  the  expression,  '  intemper- 
ate habits'?"  The  court  in  Alabama  once  asked 
itself  in  a  case  brought  under  the  statute  forbidding 
the  sale  of  licpior  to  persons  of  such  habits,  and 
to  its  query  itself  rejdied.  "  Ilabit  is  defined  to 
be  'fixed  or  established  custom,  ordinarv  course 
of  conduct."  "Webst.  Die'  "  It  need  not  be  the 
uniform  or  unvarying  rule,  but  to  be  a  habit  it 
must  be  the  ordinarv  course  of  conduct  —  the 


;  : 

i 

: 

! 

I  : 
i. 


% 


ill 

i' 


n 


1 . 


r 


'  Southcombe  v.  Merrinian,  1  Car.  &  M.  286. 
2  Tatum  V.  State,  6:}  Ala.  147. 


,-t1S 


PI 


;  Ml 

If' 
I. 


124 


iNSritANdE. 


gL'iioral  rule  or  ciistoin.  It  may  have  exceptions. 
Exceptions  do  not  destroy  a  rule.  But  unless, 
wlien  occasion  otters,  thei-e  is  a  disposition,  or 
]irol)al)le  inclination,  to  driid<  to  excess,  intemper- 
ate habits  cannot  be  predicated.  If  soi^'iety  is 
the  rule,  and  occasional  intoxication  the  excep- 
tion, then  the  case  is  not  brought  within  the 
statute.  On  the  other  hand,  if  the  rule  or  habit 
is  to  drink  to  intoxication  when  occasion  otters, 
and  sobriety  or  abstinence  is  the  exception,  then 
the  charge  of  intemperate  habits  is  established. 
IVow,  to  make  out  this  charge,  it  is  not  necessary 
that  this  custom  shall  be  an  every-day  rule. 
There  are  persons  whose  "  custom  is  to  remain 
sober  while  at  home,  and  who,  when  in  com]iany, 
or  visiting  the  town  or  village,  generally  drink  to 
excess,  although  occasionally  they  abstain  and  re- 
main sober.  In  such  case,  drunkenness  is  shown 
to  be  the  rule,  or  ordinarv  course  of  conduct." 
So  one  may  be  of  "  intemperate  habits  "  without 
being  drunk  every  day,  but  the  court  held  that 
getting  drunk  two  or  three  times  a  year  was  not 
an  "  intemperate  habit.*" 

A  " declaration "  is  not  as  strong  as  a  "war- 
ranty." An  applicant  for  life  insurance  "  declared  " 
that  he  had  never  practised  any  pernicious  habit 
tending  to  shorten  life,  and  that  he  never  would. 
Afterward  he  took  to  the  wine  cup,  and  died. 
An  action  was  brought  upon  the  policy ;  the  com- 
pany refused  payment  on  the  ground  of  breach 


W] 


I 


NSUUAXCK. 


lli.') 


I 


of  t'ontrai't.  Tlic  court,  liowt-vi-r,  held  that  tlie 
])olify  was  not  avoiik'il,  saying  that  tho  insured 
(lid  not  covenant,  promise,  agree  or  warrant  that 
ho  would  not  practice  any  i)ernicious  h:il)it;  he 
declared  that  he  would  not.  To  declare  is  to 
state,  to  assert,  t<»  publish,  to  utter,  to  announce 
clearly  some  opinion  or  resolution  ;  wliiU;  to  ])rom- 
ise  is  to  agree,  to  pk'dge  one's  self,  to  engage,  to 
assure  or  make  surii,  to  pkMlge  by  contract. 
(Worcester  received  credit  this  time.') 

In  one  case  it  was  held  that  the  phrase  ""  ad- 
dicted to  the  excessive  use  of  intoxicating  liquors,"' 
meant  not  the  occasional  excessive  use,  but  the 
liabitual  excessive  use."  If  one  has  had  (lellriuni 
tremens  shortly  previous  to  the  issue  of  the  policy, 
or  been  attended  by  his  physician  on  account  of  the 
effects  of  excessive  drinking,  he  should  reveal  the 
fact  to  tlie  insurance  company,  at  least  if  he  wishes 
the  policyto  produce  the  golden  fruits — so  vividly 
described  by  insurance  agents  —  for  the  sup|)ort 
of  his  widow  and  fatherless  children.^  In  Scot- 
laud,  on  one  occasion,  an  applicant  stated  that  he 
was  in  perfect  health ;  the  medical  and  other 
referees,  to  the  question  whether  they  knew  any 
reason  why  an  insurance  on  his  life  would  be 
more  than    usually  liazardous,  answered,  "  No." 

'  Knecht  v.  Mutual  Life  Ins.  Co.,  90  Penu.  St.  118. 

■^  Mowry  v.  Home  Ins.  Co.,  1  Big.  Life  and  Ace.  Ins.  Co. 

G98. 

3  Hutton  V.  Waterloo  Life  Ass.  Co.,  1  F.  &  F.  735. 


;ifj:i 


lii'^H 


1L>«» 


InsI  UAXCE. 


\im 


Tim  iiiai)  WMs  ill  tliu  li.ibit  of  usiii<,'  si>irituon> 
H(liiors  to  such  ;m  extent  as  to  iinpjiir  liis  lio.iltli. 
Tliol^onrtof  Sessions  liekltliat  tlie  nou-coiuniuni- 
eatioii  of  tliis  fact  avoided  tlie  poliey.' 

Ilahitsof  inteni})eranee  ae(iuired  subsc(|nent  to 
the  insurance,  oven  thougli  tlie  cause  of  death,  will 
not  void  the  ])olicy  uidess  it  is  expressly  so  stipu- 
lated." In  0(/tl  Felloios  Mutual  Life  huHurance 
Co.  V.  Rohlxopp^  a  policy  of  life  assurance  con- 
tained a  clause  that  the  company  would  not  be  lia- 
ble if  the  insured  became  so  far  intemperate  as  se- 
riously or  ])ermanently  to  impair  his  health.  In  an 
action  brought  npon  the  policy,  held^  that  evi- 
dence to  show  that  deceased  was  an  habitual 
drunkard  prior  to  the  date  of  the  policy,  and  that 
he  had  created  an  appetite  wliicli  had  become  fixed 
npon  him,  but  which  had  not  seriously  inj'ur'.'d  his 
health  at  that  date ;  to  be  followed  by  the  vesti- 
mony  of  experts  to  show  that  the  amount  iif;  drank 
before  that  date,  together  with  what  he  drank 
afterward,  was  sufficient  to  seriously  impair  a 
man's  health  ;  was  inadmissible,  as  being  imma- 
terial and  irrelevant.  The  court  said :  *'  The 
offer  did  not  propose  to  show  that  he  thereafter 
became  so  intemperate  as  to  either  serionsly  or 

'  Forbes  v.  Edinburgh  Life  Ass.  Co.,  10  Ct.  of  Sess.  Cas., 
1st  rev.,  451. 

2  Reicbard  v.  Manhattan  Life.  Ins.  Co.,  31  Mo.  518; 
Horton  v.  Equitable  Life  Ass.  Soc,  2  Big.  Ins.  2-108. 

'  Penn.  Sup.  Ct.,  March  17. 1880,  8  W.  N.  C.  489. 


T 


1 


N.Sl  IJANti;. 


\'27 


]K'riu;inc'ntl_v  iiiii>air  lil.s  lioulth.  It  was  to  >li.»\\' 
hy  t'Xi)erts  tliat  tlio  ijinouiit  ho  hud  di'ank  IjcIoi-i- 
witli  the  amount  lie  lia.l  drank  MftcM'wurds  was 
siiiHcient  to  sei'ioiisl y  impair  ji  mau'.s  hcaUh.  Tlic 
(■.ij)aeity  of  ])ersoii.s  to  (h'ink  licjuor  is  so  mu't|ual, 
and  the  effect  is  so  different  on  different  individ- 
uals, it  by  no  means  follows  that  a  (jiiantity  sntH- 
c'ient  to  affect  some  other  man's  health  had  the 
same  effect  on  the  health  of  llohkopp.  The 
question  in  issue  was,  did  his  intemperaiu'e  so 
affect  him  i  The  court  opened  the  door  wide  and 
permitted  the  plaintiff  in  error  to  give  all  the 
evidence  offered  of  Rohkopp's  intemperate  habits 
and  the  effect  on  him.  That  he  was  habitually 
intemperate  was  not  denied  or  controverted.  It 
was  clearly  proved.  The  contention  was  whether 
its  effect  was  such  as  to  bring  him  within  the 
clause  of  the  policy  which  would  prevent  a  re- 
covery. Possessing  a  constitution  and  healtli 
w'hich  habitual  intemperance  for  so  many  years 
had  been  unable  to  seriouslv  iniure  showed  a 
capacity  to  withstand  its  action  that  justly  con- 
lined  the  evidence  to  the  effect  that  liquor  had 
on  him,  and  not  what  effect  it  might  have  on 
some  other  person."  Sfiarswood,  Ch.  J.,  and 
Gordon  and  Tkunkey,  J»r.,  dissented.  This 
condition  was  distinii-uishable  from  the  usual  con- 
ditions  that  the  habits  of  the  insured  are  sober 
and  temperate,  (in  wliich  case  it  is  sufficient  to 
show  the  contrary,  and  it  is  no  answer  that  the 


ill 


J28 


Jnsukaxck. 


i  k  ■'. 


i 


intcmpomncc  was  liurmle.ss) ; '  and  that  tlie  policv 
sliall  1)0  void  if  tlio  iiisiire<l  die  froin  the  use  ol" 
ii)to.\icatin<^  H(|Uors. 

Anioiig  tlio  various  (jiu'stions  })ut  to  .Mi'. 
Ileiiry,  wlieii  he  api)iied  to  the  Home  Life  In- 
surance Company  for  a  ])olic'y,  were  the  foUow- 
inir:  ().  Is  vour  lieahli  f»:ood  (and  as  far  as  von 
know),  free  from  any  syni])tonis  of  disease  ^  t>. 
Are  vour  habits  uniformly  and  sti-ictlv  sober  and 
temperate?  10.  Have  you  ever  been  addicted  to 
the  excessive  or  intemperate  use  of  any  alcoholic 
stimulant  or  opium  ?  10  (0).  Do  you  use  habit- 
ually intoxicating  drinks  as  a  beverage  ?  To  the 
iirst  and  second  here  given  Henry  replied  in  the 
affirmative,  to  the  others  in  the  negative.  At 
the  trial,  the  court  said  the  questions  were  to  be 
taken  to  mean  what  the  words  employed  usually 
and  commonly  mean ;  that  when  Henry  stated 
that  he  had  never  been  addicted  to  the  excessive 
or  intemperate  use  of  alcoholic  stimulants,  it  was 
not  a  statement  that  he  had  never  been  addicted 
to  the  use  of  intoxicating  liquor  at  all,  but  that 
lie  had  never  been  addicted  to  the  excessive  and 
intemperate  use  of  them,  and  it  was  untrue  if 
Henry  had,  and  oidy  in  case  he  had,  been  ad- 
dicted to  the  excessive  or  intemperate  use  of  alco- 
holic stimulants ;  that  the  second  and  fourth 
9  lestions  and  answers  related  to  the  habits  of  the 

'  Southcombe  v.  Merrimaa,  1  Car.  &  M.  28G. 


i«i^ 


^m 


iNSL'liANCK. 


129 


purty  in  that  respect.  If  the  company  liud  not 
intended  to  insure  any  person  wlio  used  intoxi- 
cating li(pior  at  all,  it  woidd  liave  been  very  casv 
to  ask  a  question  to  that  ell'ect,  but  they  did  not  do 
so.  The  occasional  use  of  intoxicatini;'  licnior  bv 
tlie  applicant  would  not  make  these  answers  untrue, 
nor  would  they  be  rendered  untrue  bv  any  ii>e  of 
intoxicating  drink  whicli  had  not  made  hisliabits 
those  of  a  man  not  uniformly  and  strictly  sober 
and  temperate,  or  which  did  not  amount  to  habit- 
ual use  of  such  drinks  as  a  beverage. 

The  company  also  complained  that  the  answers 
to  these  questions  M'ere  not  full,  correct  and  true, 
as  Henry  war' anted  them  to  be.  The  court 
thouii'ht  that  a  distinction  was  to  be  taken  between 
untrutliful  answers  to  specific  questions  and  the 
mere  failure  to  make  full  answeis.  Such  failure, 
under  such  a  warranty,  to  defeat  the  policy  nnist 
relate  to  some  circumstance  which  niiirht  render 
an  insurance  more  than  usually  hazardous,  or 
wlii^ii  miglit  atiect  unfavorably  his  prospects  of 
life;  while  an  untruthful  or  incoi-rect  answer  to 
the  specific  questions  asked  renders  the  policy  ab- 
solutely void  thoufxh  made  in  relation  to  a  matter 
not  material  to  the  risk.' 

V  policy  contained   a  conditioji   that  the  com- 
])any  slionld   not  be  liable  thereunder  if  !he  in- 


A  s 


V  i 


i  -I 


t| 


m 


¥'Uh\ 


■'J 


'  Swick  V.  Home  Life  lus.  Co.,  3  Ins.  L.  J.  Aio  ;  May  on 
Insurance,  p.  039, 

9 


130 


Insurance. 


;  ,  'f  ^. 


U' 


'. 


siired  sliould  die  by  his  own  luiiid.  While  drunk 
the  insured  took  laudanum  and  died  ;  the  plaintiff 
insisted  that  the  drug  was  taken  by  mistake.  The 
court  said  if  the  assured  drank  to  intoxication 
and  while  in  this  condition,  by  ar^ident  or  mis- 
take, took  an  overdose  of  laudanum  and  died 
therefrom,  this  was  not  dying  by  his  own  hand, 
in  the  sense  of  the  words  as  used  in  the  policy, 
even  thoui»:h  the  mistake  or  accident  was  in  some 
sense  occasioned  by  the  drunkeimess.  But  if  he 
took  the  dose  wdth  the  intent  to  destroy  himself, 
though  it  was  but  the  intent  of  a  drunken  man, 
this  was  dying  by  his  own  hand.^ 

Where  a  policy  provided  that  it  should  be  void 
if  the  insured  should  become  so  intemj^erate  as 
to  impair  his  health,  the  company  may  —  if  the 
insured  falls  into  such  bad  habits  —  maintain  a 
suit  in  equity  to  have  the  policy  cancelled  and  sur- 
rendered upon  payment  of  its  surrender  value." 


'  Equity  Life  Ass,  Soc.  v.  Patterson,  41  Ga.  338;  S.  C,  5 
Am .  Rep.  ooo. 

-Conn.  Mut.  Life  Ins.  Co.  v.  Home  Ins.  Co.,  17  Blatchf. 
142. 


Marriage. 


131 


CHAPTER  IX. 
MAKRIAGE. 


Can  a  druriken  miui  be  iiuuTied  i  Marriaire  is  a 
cuntract  just  as  iiiueli  as  biiyiiig  a  penn'orth  of 
snnff,  or  a  ha'p'or  li  of  hair-oil,  although  it  ditl'ers 
from  other  ccii^racts  in  that  the  parties  cannot 
annul  it  or  vary  its  terms  at  their  pleasure.  As 
consent  is  an  essential  ingredient  of  any  contract, 
there  cannot  be  a  valid  marriage  when  there  is  a 
want  or  a  deficiency  of  understanding,  and  so  an 
absence  a'l  consent  in  either  of  the  parties.  The 
old  Roiua^is  used  to  say:  ''"■Consensus  non  con- 
cuhif'^'^faHt  nujjHas  J  "  the  English  jurists  echo 
the  sentinn  r.t,  and  Chancellor  Kent  adds :  "  This 
is  the  language  of  the  common  and  canon  law, 
and  of  cdnmon  sense."^  One  cannot  force  a  man 
to  be  married  against  his  will ;  his  consent  must 
be  an  intelligent  consent,  and  not  one  his  mind 
does  not  go  with. 

Xi.  the  days  usually  called  "  the  good  old  days," 
whci.  ^'^eoige  the  Third  was  king,  and  the  Fleet 
mair'uigrs  formed  one  of  the  strangest  scandals 
of  Enfflish  life,  many  a  man  in  the  excitement  of 
drink  was  inveigled  into  a  sudden  marriage  which 


t'^'Sf 


'  2  Comm.  87. 


h    4 


132 


Makkiagi: 


blasted  all  the  prospects  of  liis  life.  In  soiiu- 
cases  when  men  slept  otf  a  clruiiken  tit  they  heard 
to  tiieir  astonislinient  tliat  during  its  continuance 
tiiey  had  gone  througl  the  marriage  ceremony 
with  the  aid  of  some  par.5<  .-.  >erchuncea  prisoner 
in  the  Fleet  prison  for  debt  ..ml  a  man  of  noto- 
riously infamous  life),  without  any  license  and  in 
Bonie  ])ublic-house  or  brothel,  or  garret.  Some- 
times between  two  and  three  hundred  M'eddings 
t(tok  })lace  within  a  week  in  the  neighborhood  of 
the  ])rison.  One  parson  married  173  couples  in  a 
single  day,  chiefly  sailors  entrapped  through 
wine.' 

Xow,  however,  it  seems  clear  that  a  marriage 
of  an  idiot  is  absolutely  void,  and  that  of  a 
lunatic,  unless  it  is  during  a  lucid  interval,  is  also 
absolutely  void  ;  *  and  that  mental  incapacity  pro- 
duced l)y  drunkenness  has  the  sameeifect  as  any 
any  other  kind  of  insanity.  It  matters  not 
whether  the  mind  be  diseased  more  or  less,  or 
by  what  cause,  (hllrlum  tremens  or  otherwise, 
so  long  as  i)erfect  consent  does  not  exist  the 
marriage  is  not  bindiuii:.^  l)Ut  the  insanity,  or 
w\ant  of  mind,  must  exist  at  the  time  of  the  mar- 
riage, and  if,  after  a  lucid  interval,  the  party 
ratifies  the  marriage,  both  ]>arties  are  fast  bound. 

In  order  to  render  xoid  ;i  ceremony  of  marriage, 

'  Lecky,  England  in  XVIII  ('entiiry,  cli.  ;]. 

« Browning  v.  Reane,  2  Pliill.  GO. 

'  Proffat,  Woman  under  the  Law,  ch.  2. 


Makkiaok 


183 


oHierwise  valid,  on  the  (jroniid  tliat  the  man  was 
intoxicated,  it  must  Le  sliowu  tliat  there  was  sucli 
a  state  of  intoxication  as  to  deprive  him  of  all 
sense  and  volition,  and  to  render  him  inca])al)leof 
knoM^ing  what  lie  was  ahoiit.  It  would  a])i)ear 
tliat  a  conihination  amoiii^^  ])ersoiis,  fi-iondly  to 
a  woman,  to  indnce  a  man  to  consent  to  marrv 
her,  it  not  being  shown  that  she  had  done  any- 
thing to  procure  her  friends  to  do  any  im])roper 
act  in  order  to  bring  about  the  consent,  would  not 
avoid  marriage. 

A  marrian'c  entered  into  while  the  man  is  so 
intoxicated  as  to  be  incapable  of  understanding 
what  he  is  about  is  voidable  onlv  andniavbe 
ratitied  and  confirmed. 

Three  vears  after  the  ceremony  of  marriaiiie 
which  the  man  alle2:ed  he  had  been  induced  to 
enter  into  while  nnder  arrest  and  intoxication,  an 
action  at  law  being  brought  against  him  for  nec- 
essaries furnished  to  the  woman  and  for  expenses 
incurred  in  the  burial  of  her  child,  in  which  the 
validity  of  the  marriage  was  distinctly  put  in 
issue,  the  man  signed  a  memorandum  indorsed  on 
the  record  in  which  he  admitted  the  existence  and 
valioitv  of  the  marriai»'e,  and  consented  to  a  ver- 
diet  for  the  ])laintitf  in  the  action:  Jfrh/,  that  if 
the  marriage  was  previously  voidable,  it  was 
therebv  contirmed,^ 

'  Roblin  V.  Robiin,  28  Grant  (Ont.),  439. 


*l       ,1'  .  m 


Makkiage. 


In  Scotland  intoxication  is  a  good  reason  for 
setting  aside  a  marriage  entered  into  by  a  person 
in  that  state;  and  in  one  case  a  marriage  was  set 
aside  wliere  the  bride  was  in  sneli  a  state  of  in- 
toxication as  to  be  incapable  of  consenting  to  the 
performance ;  ^  and  Lord  Stow^ell  made  some  re- 
marks from  which  it  would  appear  that  the  same 
rule  would  prevail  in  E»^gh,iid.'^ 

Where  a  man,  in  the  prime  of  life,  married  an 
old  woman  of  seventy,  an  habitual  drunkard  and 
very  iniirm  but  possessed  of  the  redeeming 
quality  of  owning  considerable  property,  the 
marriage,  which  took  place  without  the  knowl- 
edge of  any  of  the  lady's  friends  and  without  any 
settlements,  was  set  aside.  This  was  an  extreme 
case,  for  the  woman  had  always,  from  her  youth 
up,  been  a  silly,  foolish  person ;  moreover  she 
had  a  verv  weak  intellect,  was  in  fact  almost  an 
idiot ;  the  older  she  grew  the  worse  she  got ;  her 
mind  was  so  weak  that  —  'mirabilo  dictu  —  she 
was  incapable  of  understanding  the  nature  of 
courtship,  or  marriage,  or  of  consenting  to  a 
marriage  ;  she,  poor  body,  spent  her  time  neither 
"  in  makinoj  nets."  nor  "  in  makina:  cao;es."  '■* 

On  the  other  hand  Avhere  a  man,  whose  mind 
had  been  very  weak  from  his  infancy  and  was 

'  Erskine's   Principles,   p.    109;    Johnston   v.  Brown,   3 
Shaw  «&  Dunl.  495. 
*  Sullivan  v.  Sullivan,  2  Ha^.  Cons.  24G. 
3  Browning  v.  Keaiie,  3  Hill,  69. 


TWf 


M 


\lUiIAGK. 


135 


occasionally  disordered  from  the  effects  of  drink- 
ing', snddenly  purchased  a  license  and  ^vitll<)nt 
any  previous  deliberation  or  intention  ru.>lied 
rashly  into  the  bonds  of  matrimony  ;  and  he  Meut 
tiirou<^li  the  ceremony  (as  the  clergyman  who 
officiated  jn'oved)  with  as  much  propriety  as  any 
man  conld.  The  court  considered  that  he  had 
sufficient  capacjity  to  contract  a  binding  marriage, 
as  no  evidence  was  produced  to  show  any  mad 
action  abont  the  time  he  took  his  rash  leap  ii^to 
matrimonial  darkness;  and  permitted  the  bride 
and  bridegroom  to  "  in  one  union  their  hearts, 
their  fortmies  and  their  beings  blend."  ^ 

'  Parker  v.  Parker,  2  Lee,  ;5S2. 


ills  I 


!'    V  1 


I 


0!i>    1 


111" 

I  i  1 


4'^ 


:i 


'ii^l 


\m 


136 


Rights. 


CHAPTER  X. 
RIGHTS. 


If  a  man  is  so  intoxicated  that  he  is  not  able  to 
take  proper  care  of  himself  and  an  injnrj  hap- 
pens to  him,  he  will  be  considered  gnilty  of  con- 
tribntory  negligence,  and  will  be  unable  to  recover 
any  damaiics  for  his  hurts.^  Proof  that  a  man 
was  intoxicated  when  injured  is  not  by  itself  suf- 
ficient to  charge  him  with  contributory  negli- 
gence and  so  prevent  his  recovery  ;  the  intoxica- 
tion must  be  so  great  as  to  disable  liim  from  exer- 
cisini>:  ordinary  care.'"^ 

A  man,  very  much  intoxicated,  started  to  cross 
abridge  which  was  out  of  repair;  he  had  been 
warned  that  it  was  unsafe  and  told  that-  there 
was  another  a  few  feet  off ;  he  fell  off  the  bridge 
and  was  killed.  The  Supreme  Court  held  that 
his  conduct  was  contributory  nee'liijence  and  that 
no  rv  .uvery  of  damages  could  be  had  against  the 
town  foi'  the  non-repair  of  the  structure.^ 

One's  mtoxication  is  no  excuse  for  want  of  care ; 
it  was,  liowever,  thought  at  one  time,  in  Illinois, 

nil.  Cent.  Ry.    v.   Cragen,  71  111.177;    Cramer  v  Bur 
lington,  43  Iowa,  315. 
«  O'Hagan  v.  Dillon,  42  X.  Y.  Sup.  .L't.  456. 
«  Wood  V.  Andes,  18  N.  Y.  Sup.  Ct.  54^. 


I  Its 


If? 


11      ri 


Kk; 


JUTS. 


137 


that  {ilthouii'li  a  driinkcMi  man  is  not  excused  from 
(lili«::eiice  and  care  still  jjerliaps  he  Avould  not  be 
held  to  that  liigh  order  tliat  is  exacted  fi'om  a 
(3(»ber  person.' 

"  It  is  a  fundamental  ])rinei}»le,"  says  "Wharton, 
'*  that  a  traveler  is  bound  to  look  out ;  'tis  true, 
he  need  not  have  i)erfeet  evesiii'ht,  hut  it  is  neirli- 
genee  on  his  part  to  travel  aloni^  a  road  nnat- 
tended,  if  he  is  drunk/  The  rule  is  that  when 
the  injury  is  a  eonstHpienee  flowing,  in  the  usual 
course  of  events,  from  the  injured  one's  miscon- 
duct, then  he  cannot  recover." 

So  a  drunken  man  cannot  recover  for  an  in- 
jury caused  by  his  coining  into  collision  with 
an  obstacle  negligently  left  upon  the  road  ;  be- 
cause an  intoxicated  man  precipitates  himself 
aijainst  whatever  is  in  his  wav,  and  as  somethiuij 
in  any  ordinary  drive  will  be  sure  to  be  in  his 
way  the  question  of  the  negligence  of  the  person 
who  left  the  particular  object  run  against  in  the 
road  is  immaterial."  As  Lord  ELLKXBORoran 
remarked,  '*  a  pai'ty  is  not  to  cast  himself  u])on 
an  obstruction  which  has  been  made  by  the  fault 
of  another  and  avail  himself  of  it,  if  he  do  not 
himself  use  common  and  ordinary  caution  to  be 
in   the  right,  and  one  person  being  in  fault  M'ill 

»  111.  Cent.  Ry.  v.  Hutchenson,  47  111.  408. 
^  Wharton  on  Negligence,  tj  402  ;  Cassidy  v.  Stockbrldge, 
21  Vt.  391  ;  Alger  v.  Lowell,  3  Allen.  402. 
3  Wharton,  §332. 


riHi 


138 


llKillTs. 


m 


i\ 


lujt  dispense  with  jmother's  using  ordiniiiy  Ccare 
f(»i'  himself."^  If  one  meets  with  a  fatal  accident 
thruni!li  a  defect  in  the  highway,  and  there  is  no 
evidence  of  liow  it  occurred,  the  jury  may  con- 
sider his  liahits  of  temperance  and  caution,  and 
knowledge  of  the  locality,  upon  the  (piestiou  of 
reasonable  care." 

A  man  does  not  become  an  outlaw  and  beyond 
the  pale  of  society  merely  because  he  is  intoxi- 
cated ;  as  long  as  he  behaves  himself  in  a  proper 
manner  he  is  entitled  to  the  sanje  rights  and  privi- 
le^res  as  his  sober  fellow-man.  lie  is  still  enti- 
tied  to  ride  in  the  cars,  and  is  still  entitled  to  de- 
mand from  the  company's  officials  and  servants 
the  same  amount  of  care  as  they  are  required  to 
bestow  upon  those  who  are  not  drunk.'  In  fact 
if  the  conductor  of  a  train  knows  that  one  of  his 
passengers  is  intoxicated  and  unable  to  take  care 
of  himself  he,  having  him  as  a  passenger,  is 
bound  to  give  him  an  amount  of  attention  while 
under  his  care  be^^ond  that  of  an  ordinary  pass- 
enger so  as  to  secure  his  safety,  just  as  if  he  were 
sick.*  And  if  a  man  is  injured  through  negli- 
gence the  guilty  party  cannot  show^,  in  mitiga- 
tion of  damages,  that  the  injured  one  is  a  man  of 


'  Butterfield  v.  Forrester,  11  East,  60. 

2  Cassidy  v.  Angell,  12  R.  I.  447. 

3  Milliman  v.  N.  Y.,  etc.,  66  N.  Y.  643. 
4 Giles  V.  G.  VV.  11.,  36  Q.  R  (Ont.)  360. 


IwKillTS. 


131) 


intemperate  habits  iiud  lia.s  greatly  abused  his 
liealtli  iiiul  system  thereby.'  AUhouuli  in  uiie 
case,  where  at  the  time  of  the  acrideiit  the  in- 
jured man  was  in  bad  healtli,  sull'erini;-  from  dys- 
pepsia, diftteulty  of  breatliin<j;',  defective  meinorv 
and  irritalde  temper  (all  sym])toms  of  softenin"^- 
of  the  brain),  Bylks,  J.,  told  tlie  jury  that  the 
executrix  of  the  deceased  was  onlv  entitled  to 
recover  for  actual  pecuniary  loss;  that  if  sound 
at  the  time  of  the  accident  he  mio-ht  have  lived 
for  many  years ;  if  unsound  he  would  have  died 
in  a  short  time,  or  a  year  or  two,  and  the  amount 
of  damages  would  be  less.'' 

If  a  man  is  so  intoxicated  as  to  be  disfjusting, 
offensive  and  aunoying  to  others,  a  railway  com- 
pany is  not  bound  to  carjy  him  in  their  train, 
even  if  he  has  a  ticket.^  And,  in  fact,  it  is  not 
only  the  right  of  the  company  to  expel  a  drunken, 
unruly  and  boisterous  passenger,  but  when  such 
a  one  endangers,  by  his  bacchanalian  conduct,  the 
lives  of  others,  it  is  the  duty  of  the  con  inctorto 
remove  him.*  If  need  be  he  nnist  stop  the  train, 
summon  to  his  aid  the  engineer,  stoker  brakemen 
and  such  of  the  passengers  as  will  obey  his  call, 

'  Baltimore,  etc.,  R'way  v.  Boleter,  38  Ind.  568  ;  but  see 
Birkett  v.  Whitehaven  Junction  R'y,  4  H.  &  N.  732. 

*  Birkett  v.  Whitehaven  Junction  li'y,  supra. 

3  Pitts.,  C.  &  St.  L.  R.  R.  V.  Vandyne.  57  Ind.  576  ;  Hod^res 
on  Railways  (6th  ed.),  549. 

*  Railway  v.  Valleley,  33  Ohio,  345. 


:i 


140 


Rkjhts. 


^!  -: 


t'  i 


and  loading  on  his  posse  cofuitaf  ((/>•,  ex})ol  tlio  dis- 
turbor  of  the  j)eace  or,  at  least  do  his  best  to  do  so.' 
If  he  fail  to  siilxlue  tiie  unruly  follower  of  l>ae- 
ehtisjio  should  either  discontinue  his  trijxu- give 
the  other  passengers  an  opportunity  of  leaving  the 
cars;  otherwise  the  company  will  be  responsible 
for  the  sins  of  the  rioter."  In  one  case  a  com- 
pany had  to  pay  for  an  eye  lost  by  a  passenger 
through  the  rpiarrel  of  some  drunken  men,^  and 
in  another  for  a  broken  arm/  If  the  man  ke(^[)s 
quiet  after  admonition,  he  may  be  sutfered  to  I'e- 
main  ;  and  if  there  is  nothing  in  the  conduct, 
a])]icai'ance  or  maimer  of  a  passengei*,  from  whicli 
it  can  reasonably  be  inferred  that  he  means  mis- 
chief,  the  company  will  not  be  responsible  for 
any  sudden  outbreak  or  attack.*  If  a  man  must 
be  ejected,  he  should  be  removed  in  such  a  way 
as  not  to  inflict  any  wanton  or  unnecessary  injury 
upon  him,  and  he  should  not  needlessly  be  placed 
in  any  peril  of  life  or  limb.'  If  one  push  a 
drunken  man  against  another,  and  thereby  hurt 
him,  number  one  is  guilty  of  an  assault;  but  if 
number  one  intended  doing  a  rightful  act,  such 
as  to  assist  the  drunkard  or  to  prevent  him  get- 

»  Pitts.,  etc.,  R.  R.  V.  Hinds,  53  Penn.  St.  512. 

-  Redfield  on  Railways,  II.  p.  334. 

3  Pitts.,  etc.  V.  Pillow.  7  Leg.  Gaz.  13,  Sup.  Ct.  Pa. 

*  Pitts.,  etc.,  R.  R.  V.  Hinds,  siipnt. 

•'  Putnam  v.  Broadway,  etc.,  R.  R.,  55  N.  Y.  108. 

6  Railway  v.  Valleley,  32  Ohio,  345. 


iM 


Kicans. 


141 


ting  iujiirod  by  walking  aloiit.',  and  in  so  doing 
.some  ono  16  hurt,  lio  will  not  be  answerable.' 

l*ract ical  jokers  are  Jusst  as  responsible  for  the 
ell'ectsof  their  playful  pranks  upon  drunken  men 
as  they  would  be  if  the  men  were  sober.  On  oiu' 
occasion  some  mea  found  a  drunken  man  Ivinir 
down;  they  covered  him  up  with  straw  and  then 
threw  some  hot  embers  upon  him,  whereby  lie 
was  burned  to  death.  The  judge  charged  the 
jury,  when  these  men  were  on  their  trial  for 
murder,  that  if  tliey  believed  that  the  prisoners 
really  intended  to  do  any  serious  injury  to  the 
deceased,  though  not  to  kill  him,  it  was  murder. 
But  if  they  believed  their  intention  to  have  l>een 
only  to  frighten  him  in  sport,  it  was  manslaugh- 
ter.    The  verdict  was  manslaughter.'' 

A  person  cannot  be  imprisoned  at  common 
law  for  being  drunk  in  a  public  street."  Nor 
can  he  be  arrested  for  being  intoxicated  in  his 
own  liouse,  although  some  of  his  fanuly  may  be 
anxious  to  have  hiiii  taken  off;  uidess,  indeed,  he 
is  creating  a  disturbance."  And  aUhough  an 
innkeeper,  if  drunk  upon  his  own  premises  (/.  e., 
those  parts  open  to  the  public  during  the  licensed 
hours),  while  they  are  open,  is  as  much  amenable 

*  Short  V.  Lovpjoy,  Ruswell  on  Crimes,  vol.  I,  p.  7ol. 
"  Ewington's  Case,  2  Lewin's  C.  C.  217. 
^  In  re  Liviugatoue,  (i  Pr.  H.  (Out.)  17. 
^  Reg.  V.  Blakeley.  G  Pr.  R.  (Out.)  244. 


Afl^ 


142 


lllGIITS. 


II 


to  the  penalty  for  oeiiii^  drunk  in  a  public  place 
as  if  he  was  found  i?o  upon  the  highway,  still  he 
is  not  liable  when  found  intoxicated  in  his  own 
house  after  licensed  hours  and  when  it  is  not 
open  to  the  public'  "Doinus  sua  quique  est 
tutissiinuni  refugiuni.''  AltJunigh  some  York- 
shire fuagistrates  did,  once  upon  a  time  in  their 
wisdom,  line  a  poor  publican  for  being  drunk  in 
his  ow!i  bed  in  his  own  house.^ 

Although,  as  a  general  rule,  an  inidvceper  is 
bound  to  pay  for  goodii  stolen  in  his  liouse  from 
a  guest,  still  If  the  guest,  by  his  intoxication,  lias 
in  any  way  contributed  to  the  loss,  he  cannot 
make  the  hotel-keeper  n^sponsible.' 

Sometimes  it  lias  been  considenui  that  jurors 
should  not  indulge  in  strong  drink,  and  verdicts 
have  been  set  aside  for  no  other  reason  than  that 
some  of  the  twelve  men,  good  and  true,  have 
drained  the  intoxicating  cup  when  engaged  upon 
their  important  and  arduons  duties.  At  the 
famous  trial  of  tlie  Seven  Bishops,  whenever  the 
jury  was  about  to  retire  to  consider  their  verdict, 
the  lord  chief  justice  said  nrbanely :  "Gentle- 
men of  the  jury,  liave  you  a  mind  to  drink  be- 
fore you  go?"  What  twelve  men  could  resist, 
so  the  reply  came  readily,  "Yes,  my  lord,  if  you 
please."'     Wine  was  then  given  to  tlieni.    Modern 

'  Lester  v.  Torr^ns,  L.  R.,  2  Q.  K  40:^. 
*  Wharton's  Lav  of  Innkeepons,  81. 
8  Walsh  V.  Porterfield,  18  A.  L.  J.  376. 


TP 


r; 


Rights. 


143 


courts  and  judges  are  more  like  that  oeeupant  of 
tlie  benc'li  mentioned  in  old  Dyer,  v.ho,  on  L)eini>- 
told  that  the  hirjiuen,  after  they  had  retired,  had 
eaten  some  apples,  severely  reprimamhMl  tliein 
all ;  fining  those  who  had  eaten  the  pippins  twcVre 
sliilHno:s  each,  and  those  v/ho  had  not,  six  sliillino-s 
each,  "for  that  they  had  tliem  (tlie  apples)  in 
their  pockets.'*  Perhaps  he  considered  cider  in- 
toxicating. 

In  England  the  qnestion  of  treating  jurors  has 
recently  been  discussed,  and  an  inquisition  for 
damages  in  a  compensation  case  against  a  railway 
company  was  set  aside,  on  the  ground  that  a 
champagne  lunch  was  given  by  the  claimant  to 
the  jnry.  Some  novel  distinctions  were  intro- 
duced on  this  snbject.  Mr.  Justice  Grove  dis- 
tinguished nicely  between  an  unpremeditated 
luncheon  and  a  luncheon  prepared  beforeliand, 
and  between  a  champagne  luncheon  and  a 
luncheon  of  everv-dav  occurrence.  The  court 
considered  that  there  mii^ht  be  a  tendencv  to  favor 
the  person  providing  luncheon,  and  so  the  verdict 
was  set  aside.*  Similar  results  have  ensued  in 
America  where  anv  of  the  iurv  have  been  treated 
or  feasted  at  the  expense  of  one  of   the  parties.'' 


fit 


'm^ 


:SiU 


41 


'  Tanner  v.   Swinton  &    Marlborough    Ry.,   Solicitors' 
Journal,  1881. 

*  Perry  v.  Bailey,  13  Kan.  539;  Redmond  v.   Royal   Ins 
Co.,  7  Phil.  (Pa.)  167. 


*j! 

i 

i 

II 

11! 

ii' 

mi 


m 


t    k    '>if;. 


144 


lllGIITS. 


Ill  {I  recent  case  it  was  held  that  if  tlie  siieeessf"^ 
l)artv,  or  his  attorney,  should  furnish  intoxicating' 
li(|uor  to  a  juror  during  the  progress  of  the  trial, 
it  would  be  ;igood  ground  for  granting  a  new  trial, 
unless  it  was  clearly  shown  tliat  the  drink  was 
not  intended  to  infiUence  the  juryman's  action, 
and  did  not,  in  fact,  in  any  way  influence  his 
mind.'  It  lias  been  asked  by  a  writer  on  t!ie 
champagne  luncheo..  case,  wh(3ther  it  would  not 
be  reasonable  to  hold,  that  the  lunch,  whether  or 
not  it  had  influenced  the  minds  of  the  jurors  in 
favor  of  t'le  provider,  had  a  tendency  to  render 
their  minds  unlit  for  the  calm,  deliberate  and 
proper  consideration  of  the  subject  and  the  right 
discharge  of  their  duty.  It  has  been  so  held  in 
many  of  the  American  courts.  It  is  very  difli- 
cult  and  dangerous  to  lay  down  any  cast-iron  rule 
by  which  to  gauge  whether  a  juror  has  taken  too 
much  or  not ;  and  some  of  the  courts  seem  to 
have  pushed  the  matter  too  far,  and  to  have  lield 
that  even  the  slightest  indulgence  in  inebriating 
liquors  will  incapacitate  a  juror,  and  render  his 
decision  liable  to  be  set  aside.  The  stringency 
of  this  rule  has,  however,  been  modified  of  late, 
and  the  law  appears  to  be  now  well  setthjd  in 
the  American  courts,  that  the  drinking  is  imma- 
terial, unless  shown  to  have  amounted  to  int'^)xi- 
cation,  or  to  have  been  after  the  ease  was  actually 

'  Pittsburgh,  etc.,  Ry.  v.  Porter,  Wi  Ohio  St.  328. 


Rights. 


145 


submitted  to  the  jury  for  final  decision,  or  to  have 
m  some  way  or  another  affected  the  verdict. ' 

Some  of  the  decisions  have  been  ol  siicli  8[»art;ui 
severity  that  they  have  caused  a  little  pleasantry 
among  English  writers  ;  especially  one  where  the 
finding  of  the  jury  was  set  aside  because  one  of 
the  jurors,  who  had  been  permitted  to  i-etire  fur 
a  few  moments,  drank  a  glass  of  ale  at  a  gi'oceiy 
store ,  and  another,  where  the  verdict  was  upset 
because  a  lurynian  had  taken  one-third  of  a  izill 
of  brandy  '  to  check  diarrluea.'  ^ 

Tb's  subject  has  been  lately  well  considered 
and  the  authorities  reviewed  in  Iowa,  atid  it  was 
declared  that  the  rule  based  upon  the  decisions 
is,  that  the  use  of  intoxicating  drinks  pending  a 
trial  and  before  the  final  submission  of  the  case 
to  the  jury,  in  the  absence  of  any  proof  that 
prejudice  resulted  to  the  losing  party  therefrom, 
will  not  vitiate  the  verdict ;  although  the  jui-ors 
so  indulffins:  niav  render  themselves  liable  for 
contempt  of  court.'  Tn  one  case,  the  jurors  drank 
small  quantities  of  spirits ;  in  another,  they  had  a 
glass  of  liquor  all  round  with  the  sheriff  at  a 
saloon  ;  in  a  third,  one  juror  had  two  glasses  of 
beer;  in  a  fourth,  one  took  sometliing  strong  at 

'  Stat^  ■•.  West,  G9  Mo.  401;  S.  C.,33Am.  Rep.  500;  State 
V.  Bruce,  48  Iowa,  530;  S.  C,  30  Am.  Hep.  403. 

«  State  V.  Balby,17  Iowa,39  ;  Brant  v.  FowUfr,  7  Cow.  563. 

^  State  V.  Bruce,  48  Iowa,  530,  and  the  authorities  therein 
cited. 

10 


l'§ 


mmi 


146 


Rights. 


E   it 


i  (  i 


night  for  medicinal  purposes ;  *  but  all  the  ver- 
dicts stood  against  the  liquor. 

Tiiere  is  a  wide  distinction  between  the  duty 
of  a  juror  during  an  adjournment  of  the  court 
pending  the  trial,  and  his  duty  after  the  case  is 
submitted  to  him  for  his  determination,  and  there 
are  many  cases  which  go  to  establisli  the  rule  that, 
if  a  juryman  drinks  when  the  ease  lias  been  in- 
trusted to  liim  for  his  decision,  he  is  guilty  of  such 
great  misconduct  as  to  vitiate  the  verdict."  If, 
indeed,  tlie  intoxicant  is  taken  as  a  medicine  the 
court  will  be  indulgent  and  not  interfere,  notwith- 
standing the  brandy  case  before  referred  to.' 

No  doubt  the  indulging  in  strong  drinks  by 
some  jurors  before  they  have  begur.  to  deliberate 
upon  their  verdict  has  been  sufficient  to  cause  their 
labors  to  come  to  naught.*  Yet  one  such  case 
where  the  drinking  of  one  spoilt  every  thing  has 
been  expressly  overruled,  and  the  other  has  been 
impliedly,  and  no  other  adjudications  are  in  har- 
mony with  them.^     There  is  no  difference  in  this 


'  Roman  v.  SUte,  41  Wis.  312;  Kee  v.  State,  28  i.rk. 
155  ;  Van  Buskirk  v.  Dougherty,  44  Iowa,  42 ;  O'Neill  v. 
Keokuk,  etc.,  K'way,  45  id.  546. 

*  State  V.  Bruce,  supra,  and  cases  cited, 

8  Pipe  V.  State,  36  Miss.  121 ;  Gilmanton  v.  Hann,  ?8  N. 
H.  108. 

■»  People  V.  Douglas,  4  Cow.  267 ;  Brandt  v.  Fowler,  7  id. 
562. 

»  Wilson  V.  Abraham,  1  Hill,  207;  Ryan  v.  Harrow,  27 
Iowa,  494  ;  Jones  v.  State,  13  Tex.  168 ;  State  v.  Bruce, aupra. 


\£^ 


Rights. 


147 


matter  of  drinking  between  civil  and  criminal 
trials. 

The  true  American  doctrine  harmonizes  with 
the  English  rule.  Long  since  Coke  wrote,  that 
"if  the  jury, after  the  evidence  given  unto  them 
at  the  bar,  do  at  their  own  charges  eat  or  drink, 
either  before  or  after  they  be  agreed  on  their 
verdict,  it  is  finable,  but  it  shall  not  avoid  the  ver- 
dict ;  but  if,  before  they  be  agi-eed  on  their  verdict, 
they  eat  or  drink  at  the  charge  of  the  plaintiff,  if 
the  verdict  be  given  for  him,  it  shall  avoid  the 
verdict ;  but  if  it  be  given  for  the  defendant,  it 
shall  not  avoid  it,  et  sio  e  conversoP  ^  The  treat- 
ing alluded  to  here  is  evidently  such  as  the  whole 
jury  partake  of,  and  that  only  after  the  sunnning 
up  is  over.  And  not  very  long  ago  Lord  Abingeh 
said  that  the  cases  onlv  show  that  where  all  that 
remains  for  the  jury  is  to  deliberate  upon  and 
give  their  verdict,  if  they  eat  or  drink  at  their 
own  expense  they  may  be  fined,  and  if  at  the  ex- 
pense of  the  party  for  whom  their  verdict  is 
given,  it  is  void ;  and  the  cases  seem  to  apply  to 
the  whole  jury,  and  only  to  acts  done  by  them 
after  they  are  charged.'* 

In  one  case  a  juryman  was  going  into  the  box 
in  a  state  of  intoxication ;  the  judge  noticed  his 
condition,  and  of  his  own  motion  ordered  him  to 


'1^ 

•is.' 

m 

'In 

m 

1 

!|8 

^ 

■ 

'  Co.  Litt.  2276. 

2  Morris  v.  Vivian,  10  M.  &  W.  138. 


i 


um 


iif 


t|B!:'. 


llj 


'ill!  I 


148 


Rights. 


stand  asido ;  and  the  court  held  that  tliis  was  the 
proijer  thing.*  And  where,  during  the  trial,  all 
the  jury  partook  of  intoxicating  liquors  and  one 
drunk  to  excess,  so  that  he  was  visibly  affected, 
the  verdict  was  set  aside."  Even  if  all  had  ab- 
stained except  the  one,  the  verdict  would  not  be 
allowed  to  stand.'' 

Although  it  cannot  be  said  that  the  law  is  very 
fond  of  encouraging  the  use  of  intoxicating 
liquors,  still  it  says  that  if  men  will  drink  tiie}' 
must  have  their  liquors  pure  —  they  must  get 
what  they  ask  and  pay  for ;  if  they  seek  whisky 
they  must  not  be  given  a  decoction  flavored  with 
copperas,  opium,  strychnine  or  tobacco,  any  more 
than  temperance  people  are  to  get  peas,  beans  or 
chicory  when  they  ask  for  coffee,  t'raudulent 
adulteration  of  drinks,  i.  e.,  the  debasing  of  pure 
or  genuine  commodities,  for  pecuniary  profit,  by 
adding  to  them  inferior  or  spurious  articles,  is 
by  no  means  a  modern  expedient  among  those 
who  haste  to  be  rich.  As  far  back  as  the  days  of 
Henry  III  the  dishonest  practices  of  the  vintners 
and  brewers  (as  well,  indeed,  as  of  bak(U's  and 
butchers)  were  so  glaring  that  a  statute,  called 
the  Pillory  and  Tumbrel  Act,*  was  passed  to  pro- 
tect th*^,  public.    By  this  law,  for  the  fli'st  offence, 

'  Bullard  v.  Spoor,  2  Cow.  430. 
2  Rose  V.  Smith,  4  Cow.  17 
8  Perry  v.  Bailey,  12  Kan.  689. 
*  51  Henry  III,  ch.  0. 


Rights. 


149 


|ll 


the  tnuisgressor  was  drawn  upon  a  liurdle  from 
Guildhall  to  his  own  house,  "  thi'ou«j;-h  the  great 
street  where  there  be  most  people  assembled,  and 
through  the  great  streets  which  are  most  dirtv;" 
for  the  second  offence  lie  was  drawn  throuirh 
"the  great  street  of  Cheepe,  in  the  manner  afore- 
said, to  t)ie  pillory,  and  remained  there  at  least 
one  lionr;"  for  the  third  offence  the  additional 
punishment  of  compelling  him  to  forswear  the 
trade  in  the  city  was  inflicted. 

In  the  books  of  the  Vintners'  Company,  nnder 
date  38  Edw.  Ill,  November  11, 1304,  there  is  an 
entry  to  the  effect  that,  before  the  mayor  of  Lon- 
don  and  the  aldermen,  ''John  Rightways  and 
John  Penrose,  taverners,  were  chai'ged  with  tres- 
pass in  the  tavern  of  AValter  Doget,  on  East- 
chepe,  on  the  eve  of  St.  Martin,  and  with  selling 
unsonnd  and  unwholesome  wines,  to  the  deceit 
of  the  common  people,  the  contempt  of  the  king, 
the  shameful  disgrace  of  the  officers  of  the  city, 
and  to  the  grievons  damage  of  tlie  commonalty. 
John  Rightways  was  discharged,  and  John  Pen- 
rose found  guilty ;  he  was  sentenced  to  be  impris- 
oned a  year  and  a  day,  to  drink  a  draught  of  the 
bad  wine,  the  rest  to  be  poured  over  his  head, 
and  to  forswear  the  calling  of  a  vintner  in  the 
city  of  London." 

Under  the  act  of  Henry  III  officers  were 
elected  to  test  the  goodness  of  the  ale  sold  in  the 
different  manors  of  England;  they  were  called 


m 


150 


Rights. 


"ale  conners"  or  "ale  tasters,"  and  no  ale  could 
be  sold  without  having  been  first  tasted  and  ap- 
proved by  the  ale  conners  of  the  district.  Even 
now  these  officers  are  elected  in  the  city  of  Lon- 
don with  the  old  formalities ;  but  the  real  duty 
of  examining  the  quality  of  ale,  beer  and  porter 
has  louir  been  in  the  hands  of  the  excise.  Lono- 
ago,  in  England,  the  Vintners'  Company  had 
control  over  the  price  and  purity  of  the  wines 
sold ;  and  there  were  chosen  from  the  company, 
every  year,  "  persons  of  the  most  sufficient,  most 
true  and  most  cunning  of  the  craft  (tliat  held  no 
taverns),  who  were  to  see  to  the  condition  of  all 
wines  sold  by  retail,  and  who  were  to  govern  the 
taverners  in  all  their  proceedings." 

As  far  back  as  the  reign  of  Queen  Anne  there 
was  a  law  prohibiting  the  use  of  unwholesome 
ingredients  in  the  brewing  of  beer,  under  severe 
penalties.  Under  the  Licensing  Act  of  1872  the 
possession,  sale  or  use  of  adulterated  beer  or 
spirits  is  forbidden  in  the  United  Empire.  But 
nothwithstanding  the  efforts  made  to  check  the 
evil,  the  practice  of  adulteration  has  now  become 
an  art  and  a  mystery,  in  which  the  knowledge  of 
science  and  the  ingenuity  of  taste  are  freely  exer- 
cised, the  adulteration  of  wine  especially,  has 
been  brought  to  great  perfection  ;  so  much  so, 
indeed,  that  a  great  part  of  the  wine  of  France 
and  Germany  has  ceased  to  be  the  juice  of  the 


II 


<:  :•■■< 


(1 
llt 

h 


Rights. 


151 


grape  at  all ;  and  it  is  hardly  possible  to  obtain  a 
sample  of  genuine  wine,  even  at  first  hand.' 

Adulteration  is  both  a  subject  for  indictrneiit 
at  common  law,  and  actionable.' 

Under  the  Prussian  Penal  Code  the  sale  of 
adulterated  or  spoiled  goods  is  puuished  by  tine 
or  imprisonment,  and  the  confiscation  of  the 
goods ;  and  the  laws  of  Holland  and  Franco  tire 
similarly  severe. 

In  some  of  the  States  of  the  American  Union, 
as  in  Massachusetts,  Connecticut  and  New  York, 
the  sale  of  impure,  spurious  or  adulterated  liquors 
is  forbidden ;  in  New  York  persons  adultei-ating 
with  poisonous  or  deleterious  drugs  and  mixtures, 
liquors,  or  knowingly  importing  or  selling  liquors 
so  adulterated,  are  guilty  of  a  misdemeanor,  and 
punishable  by  line  of  $300  and  imprisonment  for 
three  months.  In  Massachusetts  an  inspector 
and  assayer  of  liquors  is  appointed,  whose  busi- 
ness it  is  to  inspect,  analyze  and  report  upon  all 
liquors  sent  to  him  for  that  purpose  by  the 
authorities  of  any  municipality.  In  New  Jerse^^, 
manufacturing  or  dealing  in  any  spirits  adulter- 
ated with  spurious  or  poisonous  ingredients  of 
any  kind  is  a  misdemeanor,  punishable  by  a  fine 
of  not  more  than  $1,000,  or  imprisonment  at 
hard  labor  for  not  more  than  two  years,  or  both 

'  Enc.  Brit.  (9th  ed.).  Adulteration. 
"  Wharton  on  Innkeepers,  68. 


liii 


152 


Rights. 


at  the  discretion  of  the  court.  And  tlie  adulter- 
ating any  malt  liquoi's,  or  the  selling  the  same ; 
or  the  mixing,  eunipounding  or  poisoning  any 
malt  or  vinous  or  spirituous  liquors  the  one 
with  the  other,  or  in  any  other  way  whatever ; 
or  the  giving,  bartering  or  selling  the  same  with 
the  intent  to  niaivc  a  greater  profit,  or  with  in- 
tent to  produce  intoxication  or  stupefaction  is 
likewise  a  misdemeanor  punishable  by  a  fine  of 
not  more  than  $500  and  imprisonment  at  hard 
labor  for  not  more  than  a  year,  or  either,  as 
the  court  before  wiiom  the  guilty  party  is  tried 
may  in  its  discretion  think  best. 


i!:L 


T" 


AV^KONGS. 


i:>:i 


CTIAPTETI  XT. 
AVKONGS. 


In  Jill  action  for  bodily  injuries,  it  is  not  necessary 
to  show  that  tliei'C  existed  in  tlie  mind  of  tlie 
wrong-doer  any  evil  design  or  intention,  and  so 
the  law  has  held  that  botli  infants  an<l  lunatics 
are  answerable  for  their  torts,  although  they  are 
wholly  incapable  of  forming  any  deliberate 
design.^  It  follows,  therefore,  that  drunkenness 
will  be  no  defence  in  an  action  of  tort.''  Indeed, 
it  may,  in  a  certain  way,  be  looked  upon  as  an 
aggravating  circumstance,  when  the  (piestion  is 
material  whether  due  care  had  been  taken  by  the 
tort-feasor  to  avoid  the  accident  out  of  which  the 
cause  of  action  arose.  For  instance,  in  an  action 
to  recover  damages  for  injuries  received  by  the 
plaintiff  through  the  negligent  driving  of  a  sleigh, 
Gibson,  C.  J.,  said :  "  The  evidence  of  intoxica- 
tion ought  to  have  been  received,  not  because  the 
legal  consequences  of  a  druidvcn  man's  acts  are 
different  from  those  of  a  sober  mairs  acts,  but 
because  where  the  evidence  of  negligence  is  nearly 


'  Co.   Litt.  180,  B.    a.  ;    Weaver  v 
Morse  v.  Crawford,  17  Vt.  499. 
« Black.  Com.,  vol.  IV,  p.  25. 


Ward,   Hobart,  138; 


154 


WliONGS. 


])alanc'e(.l,  tlic  fact  of  dninkenness  miglit  turn  the 
Hcale,  inasimu'li  as  a  man  partially  bereft  of  his 
faculties  would  be  less  observant  than  if  he  wore 
sober,  and  less  regardful  of  the  safety  of  others. 
For  this  puiiiose,  but  certainly  not  to  inflame  the 
damages,  the  evidence  of  intoxication  ought  to  be 
admitted.''  ^ 

Drunkenness  is  no  excuse  for  slander." 
A  man  who  drives  carelessly  along  a  highway, 
and  thereby  injures  a  passer-by,  cannot  excuse  his 
recklessness  by  showing  that  he  was  drunk.^  And 
a  man  who  employs  an  intoxicated  servant  to  do 
any  act  requiring  care,  is  guilty  of  negligence 
whenever  a  knowledge  of  his  servant's  habits  is 
imputable  to  him ;  *  and  if  one  continues  know- 
ingly to  employ  drunken,  reckless  or  incompe- 
tent servants,  he  may  be  held  liable  for  exemplary 
damages  should  the  servants,  through  negligence, 
injure  any  one." 

One  Martin  was  drinking  in  a  tavern,  and 
called  for  a  quatern  of  gin ;  a  child,  four  years 
old,  of    the  innkeeper  was   present,  and  Martin 

'  Wynne  v.  Allard,  5  W.  &  S.  525  ;  Reed  v.  Harper,  25 
Iowa,  87. 

^  Reed  v.  Harper,  supra. 

'  Wharton  on  Negligence,  §  305  ;  State  Bank  v.  Mc- 
Coy, 69  Penn.  St.  195. 

*  Sawyer  v.  Sauer,  10  Kans.  406;  Frink  v.  Coe,  4  Greene, 
555. 

»I11.  C.  Ry.  V.  Hammer,  72  111.  347. 


TT 


Wkongs. 


155 


asked  him  if  lie  would  luivo  a  drop,  at  tlio  same 
time  putting  the  glass  to  the  child's  mouth; 
whereupon  the  infant  snatched  the  vessi'l  atid 
drank  the  whole  contents,  which  caused  his  death 
in  a  few  hours.  The  man  was  tried  for  man- 
slaughter, but  Baron  Vauguan  said,  "  As  this  was 
the  act  of  the  child  there  must  he  an  acquittal, 
hut  if  it  had  appeared  that  the  prisoner  had 
willingly  given  a  child  of  this  tender  age  a  quat- 
ern  of  gin,  out  of  a  sort  of  brutal  fun,  and  had 
thereby  caused  its  death,  I  should,  most  decidedly, 
have  held  that  to  be  manslaughter."^ 

The  deceased  was  standing  up  in  a  small  boat 
at  the  side  of  the  vessel  on  which  Waters  was; 
in  the  course  of  rough  and  drunken  joking.  Wat- 
ers pushed  the  boat  M'itli  his  foot,  in  consequence 
the  dece^ised  fell  overboard,  and  was  drowned. 
Judge  Park  would  not  consider  this  man- 
«''  lughter.'' 

The  Court  of  Chancery  will  interfere  and  re- 
11  ve  a  child  from  the  care  and  custody  of  the 
father,  on  the  ground  of  his  constant  habits  of 
drunkenness  and  blasphemy.  Lord  Eldox  stated 
that  he  ha  1  no  difficulty  in  saying,  "that  if  a 
father  be  living  in  a  state  of  habitual  drunken- 
ness, incapacitating  himself  from  taking  care  of 
his  children's  education,  he  is  not  to  be  looked 

'  Rex  V.  Martin,  3  C.  &  P  211. 
»Rex  V.  Waters,  G  C.  &  P.  328. 


*u 


166 


Wrongs. 


upon  as  a  man  of  such  reason  and  understanding 
as  to  enable  him  to  discliarge  the  duty  of  a  parent ; 
and  if  sneh  a  case  wore  to  occur,  the  ^ourt  would 
take  care  that  the  children  sliould  not  be  left 
under  the  control  of  a  person  who  so  debased  him- 
self, and  was  so  likely  to  injure  them." ' 


'  10  Vesey,  Gl  ;  2  Russ.  30. 


wm 


ClilMES. 


157 


CHAPTER  XII. 


CRIMES. 


In  the  canon  law  drunkenness  is  expressly  'nen- 
tioned  as  a  ground  entitling  an  accused  person 
to  the  indulgence  of  a  reasonable  judge,  be- 
cause whatever  is  done  in  that  state  is  done  with- 
out consciousness  on  the  part  of  the  actor ;  and 
besides,  say  the  canonists,  as  God  had  indulgence 
toward  the  offence  committed  by  the  patriarch 
Lot,  while  in  a  state  of  intoxication,  the  clemency 
of  an  earthly  judge  is  justifiable.  They  likened 
a  drunken  person  to  one  under  the  influence  of 
sleep. 

In  Germany,  in  the  earliest  writings  of  the 
most  ancient  practitioners  of  the  Middle  Ages, 
the  principle  is  established  that  drunkenness  is  a 
ground  of  extenuation  for  crime.  Since  the  time 
of  Clarus,  especially,  the  opinion  had  prevailed 
that  the  effect  of  the  highest  degree  ol'  drunken- 
ness (that  is,  where  there  is  an  entii'o  loss  or  dis- 
arrangement of  cc'^sciousness,  so  that  one  is  no 
longer  aware  of  what  he  is  doing,  or  at  least  of 
the  consequence  of  his  deeds,  physically  and  le- 
gally), was,  indeed,  to  exempt  from  the  punish- 


158 


Crimes 


meiit  of  a  crime  (dolus),  but  that  the  offender 
was  still  liable  to  the  punishment  of  a  fault 
(culpa),  except  in  two  cases,  viz. :  first,  when  the 
accused  made  himself  drunk  intentionally  in 
order  that  he  might  commit  a  crime  while  in 
that  state ;  and,  secondly,  when  he  became  intox- 
icated without  any  fault  on  his  part.  In  the  first 
case  he  was  not  excused  at  all,  and  in  the  second 
he  was  deemed  free  from  all  blame.' 

The  same  indulgent  opinion  as  to  the  influence 
of  intoxication  upon  criminal  liability  prevailed 
in  Italy,  Si>ain,  Portugal  and  Holland  during  the 
Middle  Ages.  On  the  other  hand,  in  France, 
England  and  Scotland,  legal  opinion  developed 
in  a  direction  precisely  the  o])posite.  In  these 
latter  countries  the  jurists  set  out  with  the  princi- 
ple that  drunkenness  is  in  itself  a  punishable  act, 
and  that  those  who  commit  an  offence  when  in  a 
punishable  state  deserve  no  exculpation.  They 
also  thought  that  it  would  be  attended  with  too 
great  danger  to  society  to  attribute  a  mitigating 
power  to  intoxication,  as  it  could  be  easily  as- 
sumed as  a  cloak  for  crime  ;  and  so  they  early 
established  the  doctrine  that  a  criminal  was  in  no 
case  freed  from  his  liability  to  punishment  be- 
cause he  chanced  to  be  drunk.  In  the  Nether- 
lands, too,  by  an  ordinance  of  Charles  V,  intox- 
ication was  not  allowed  to  free  an  accused  from 

'  Mittermaier  on  the  Effect  of  DrunkennegH,  etc.,  §  3. 


I  i 


Crimes. 


15t) 


the  punishment  usually  inflicted  upon  his  tmns- 


ffression. 


The  doctrines  of  the  modern  legal  systems  of 
Germany  remain  true,  essentially,  to  the  old  (ier- 
man  principle.  In  the  annals  of  Prussian  crimi- 
nal practice,  we  lind  that'even  when  a  father  in  a 
drunken  fit  killed  his  child,  the  offender  was  only 
punished  by  one  year's  imprisonment.  Under 
the  Bavarian  Code,  however,  if  the  inebriety  is 
intentional,  and  the  transgressor  has  put  himself 
in  that  state  for  the  purpose  of  committing  a 
crime,  it  will  avail  him  nothing  as  an  excuse ; 
otherwise  drunkenness  is  considered  such  an  "  in- 
culpable disorder  of  the  senses  or  of  the  under- 
standing," as  to  exempt  the  doer  of  wrong  fi'om 
responsibility.  The  Austrian  Code  deems  com- 
plete intoxication,  when  not  indulged  in  with  a 
criminal  design,  a  ground  of  freedom  from  lia- 
bility. 

A  learned  German  professor  argues  that,  in 
considering  whether  criminality  should  be  im- 
puted to  an  offender,  the  only  proper  enquiry  is, 
whether  the  actor,  at  the  time  of  the  act,  pos- 
sessed a  consciousness  of  his  deed  and  of  its  con- 
sequences, and  of  its  relation  to  the  law  of  the 
land ;  and  that  where  this  conscious  knowledge  is 
V7anting  imputalulity  ceases ;  and  that  this  con- 
sciousness is  obliterated  in  one  who  is  in  a  state 
of  complete  intoxication. 

This  writer  speaks  of  three  degrees  of  drunk- 


lii 


''il  ' 


160 


Crimes. 


m 


'  I 


m 


einiess  in  this  conncotion.  The  first  or  lowest  is 
that  in  whicli  the  lic^uor  taken  only  promotes  a 
quicker  circulation  of  the  blood,  thereby  in,  eas- 
ing the  nervous  activity.  The  drink  makes  the 
drinker  more  excitable  than  usual,  but  his  intel- 
lectual powers  remain  in  their  normal  state,  and 
the  use  of  his  understanding  is  not  diminished. 
Here  the  responsibility  is  in  no  respect  changed 
or  lessened,  any  more  than  is  that  of  one  who,  in 
a  burst  of  joy  on  the  receipt  of  pleasing  nevv's, 
does  a  light-minded  and  wanton  act.  In  drunk- 
enness of  the  second  degree,  the  feelings  rise  to 
a  state  of  passion;. the  imagination  gains  the 
upper  hand  and  fills  the  mind  with  unreal  visions 
and  empty  images;  and  the  increased  excitability 
of  the  drunkard  clouds  and  inishiads  his  conscious- 
ness, which,  however,  is  not  generally  destroyed. 
His  conduct  is  more  excited  than  when  sober, 
but  he  is  still  master  of  his  actions,  and  by  his 
whole  deportment  shows  that  he  is  conscious  of 
whac  he  is  doing.  It  is  evident  that  even  at  this 
stage  responsibility  cannot  be  considered  at  an 
end ;  and  yet,  on  account  of  the  deceived  and 
confused  consciousness,  it  is  just  (this  writer  con- 
tends) that  there  should  be  a  diminution  of  the 
punishment  for  crimes  committed  in  this  con- 
dition. Drunkenness  of  the  highest  degree  is 
characterized  by  such  an  entire  loss  or  disorder 
of  the  consciousness,  that  the  man  is  no  longer 
aware  of  what  he  is  doing,  or  at  least  of   the 


iv\  Y 


Crimes. 


161 


legal  consequences  of  his  deeds.  The  fancy  is  so 
excited  that  the  ideas  flow  as  fast  and  irrationally 
as  in  dreaniinf^;  or  false  notions  take  possession 
of  the  mnid,  and  their  unreality  cannot  be  de- 
tec-ted  ;  and  wild  appetites  arise.  So,  in  reference 
to  the  particular  crime  committed  by  the  drunken 
man,  imputability  ceases,  because  consciousness, 
as  the  condition  of  imputability,  does  not  exist.* 

The  early  doctrines  of  the  French  jurists  still 
leaven  French  legislation,  and  in  France,  it 
would  seem  that  drunkenness  is  not  in  any 
case  a  ground  of  relief  from  the  usual  punish- 
ment; but  juries  ofttimes  so  consider  it  and 
pronounce  verdicts  of  acquittal  when  the  crimi- 
nal has  provdd  his  drunkenness.  Later  English 
jurists  have  also  walked  in  the  steps  of  their 
predecessors,  stare  decisis  being  their  motto; 
though  as  we  shall  observe,  they  now  admit  that 
in  some  cases  drunkenness  diminishes  the  re- 
sponsibility and  in  others  exempts  from  punish- 
ment." 

We  have  already  seen  that  the  drunkard  is 
considered  by'  the  sages  of  the  English  law  as  one 
non  compos  m&itis  '  yet  he  is  not  excused  in 
criminal  cases  as  are  other  non  compotes  rrumtis. 
That  quaint  old  legal  luminary.  Sir  Edward 
Coke,  calls  one  possessed  by  what  Othello  apos- 


'  Mittermaier,  §  6. 
11 


» Mittennaier,  §§  3  and  4. 


i^J^-'i 


■i!    : 


162 


Crimes. 


'    n 


*;•     • 


tropliizes  in  the  words,  "  O  tliou  invisible  spirit 
of  wine,  if  thou  hast  no  name  to  be  known  by, 
let  us  call  thee  devil,"  as  iwluntarius  daemon. 
Drunkenness  is  a  species  of  madness  which 
has  been  called  dementia  affectata,  and  the 
rule  has  been  long  settled  in  England,  that 
if  the  intoxication  be  voluntary  it  cannot  ex- 
cuse a  man  from  the  commission  of  any  crime.' 
This  law,  like  most  of  the  good  law  which 
has  been  enunciated  by  the  English  judges, 
has  been  adopted  in  the  American  courts. 
Story,  J.,  remarks,  that  although  insanity  as  a 
general  rule  produces  irresponsibility,  "an  ex- 
ception is  when  the  crime  is  committed  by  a 
party  while  in  a  fit  of  intoxication,  the  law  al- 
lowing not  a  man  to  avail  himself  of  his  own 
gross  vice  and  misconduct  to  shelter  himself 
from  the  legal  consequences  of  such  a  crime."' 
This  doctrine  has  been  reaffirmed  repeatedly 
since  the  days  of  that  great  jurist ;  and  it  may 
now  be  taken  as  definitely  settled  on  both  sides 
of  the  Atlantic,  that  voluntary  drunkenness,  that 
merely  excites  the  passions  and  stimulates  men 
to  the  commission  of  crimes,  neither  excuses  the 


A-    i 


•  Per  PAnKE,  B.,  Rex  v.  Thomas,  7  C.  &  P.  20 ;  Alder- 
son,  B,,  Reg.  V.  Makin,  id.  297. 

*  People  V,  Lewis,  36  Cal.  531 ;  Mclntyre  v.  People,  38 
111.  514;  People  v.  Garbutt,  17  Mich.  19;  Wharton's 
Criminal  Law,  g  40;  Fuery  v.  People,  54  Barb.  319;  2 
Keyes,  424. 


Crimes. 


103 


offence  nor  mitigates  the  pimisliinent.'  Taylor, 
in  his  able  work  on  Medical  Jurisprudence,  re- 
marks that  it  is  obvious  that  if  drunkenness  were 
to  be  readily  admitted  as  a  defence,  three-fourths 
of  the  crime  committed  would  go  unpunisiit'd.' 
His  inebriety  far  from  being  a  criniinars  excuse 
is   rather   an  ago^ravation    of   whatever  he  does 


*»>3' 


amiss. 

Aristotle  considei'ed  that  a  man  committing 
a  crjme  when  drunk  deserved  double  punish- 
ment, because  he  doubly  offended  ;  first,  in  being 
drunk  to  the  evil  example  of  others,  and  then, 
in  committing  the  crime.  And  the  schoolmen 
said,  nam  omne  crimen  inebrietas  incendit  et 
detegit.  Even  the  mild  German  holds  that  the 
man  overcome  by  the  highest  degi-ee  of  drunk- 
enness is  on  the  same  footing  as  one,  who,  with- 
out any  intention  to  commit  an  offence,  improp- 
erly puts  himself  in  a  condition,  which,  as  he 
cannot  fail  to  know  its  danger,  be  might  easily 
and  ought  to  have  avoided  ;  that  he  is  therefore 
liable  to  the  repi'oach  of  culpa^  when  he  commits 
an  offence  in  tliat  ccmditio.n;  since  he  might 
have  avoided  falling  into  it ;  and  according  to 
common   experience,  he    could    not   have   been 

'  Slianahan  v.  Cora.,  8  Bush  (Ky.),  464  ;  State  v.  Thomp- 
son, 12  JSev.  140. 

'Vol.  II.  p.  596. 

» 4  Black.  Com.  26  ;  Rex  v.  Carroll,  7  C.  &  P.  145  ;  Com. 
V.  Hart,  2  Brewst.  (Pa.)  546. 


164 


Crimes. 


ignorant,  that  a  drunken  man  is  no  longer  master 
of  himself,  and  is  against  his  will  impelled  to 
acts  which  in  a  sober  state  he  would  not  have 
committed.' 

Tlie  effect  of  strong  drink  depends  very  much 
upon  climate.  The  same  indulgence  which  would 
only  make  the  blood  move  in  Norway  would 
make  an  Italian  mad.  President  Montesquieu 
says,"  a  German  drinks  from  custom  founded 
upon  constitutional  necessity  ;  while  a  Spaniard 
drinks  through  choice  or  out  of  mere  wantonness 
of  luxury.  And  he  adds,  drunkenness  ought  to 
be  more  severely  punished  where  it  makes  men 
mischievous  and  mad,  as  in  Spain  and  Italy,  than 
where  it  only  renders  them  stupid  and  heavy  as 
in  Germany  and  more  northern  countries. 

In  Pennsylvania,  at  one  time,  it  seems  to  have 
been  thought  that  if  the  intoxication  is  so  excessive 
as  totally  to  destroy  reason,  it  is  a  defence  for 
crime." 

The  law  is  merciful  and  kind,  and  so  holds 
that  if  a  person  by  the  unskilfulness  of  his  phy- 
sician, or  through  the  malice  and  contrivance  of 
his  enemies,  eat  or  drink  any  thing  that  causes 
madness  or  frenzy,  he  is  considered  to  be  in  the 
same  position  as  any  other  afflicted  with  dementia 
dLcciderdaliSj  vel  adventitial  and  the   ill   deeds 

'  Mittermaier  "On  the  effect  of  Drunkenness,"  etc.,  §  7. 

'Spirit  of  Laws,  B.  14,  ch.  10. 

8  Com.  V.  Hart,  3  Brewst.  (Pa.)  546. 


Crimes. 


105 


(lone  by  him  while  in  that  state  are  excused.*  Mr. 
Balfonr  Browne,  in  his  work  on  ''  The  ^[edical 
Jurisprndenceof  Insanity,"  seeks  to  pusli  this  doc- 
trine very  far;  he  says:  "A  very  nice  qnestion 
arises  here.  We  will  hereafter  consider  tlie  re- 
sponsibility of  those  who  have  become  insane 
through  the  long-continued  use  of  intoxicating 
liquors,  and  we  shall  see  that  tlie  law  holds  these 
upon  good  and  sufficnent  grounds  to  be  irrespon- 
sible. But  there  is  a  class  between  those  who 
are  insane  through  habit  and  those  who  get  vol- 
untarily drunk,  the  legal  relations  of  wliich  it  is 
important  to  determine.  It  is  well  known  that 
tliere  are  cases  where,  owing  to  some  physical 
injury  done  to  the  head  of  an  individual,  a  very 
small  amount  of  stimulation  will  produce  drunk- 
enness, and  the  drunkenness  will  lead  to  a  fit  of 
temporary  insanity.  The  law  of  England  makes 
no  distinction  between  an  act  committed  by  a 
person  affected  in  tliis  way  and  the  act  of  an 
ordinary  drunkard.  But  wliat  is  law  is  not 
always  right.  It  is  evident  that  if,  tlu'ough  some 
bodily  infirmity,  a  man  under  the  influence  of 
a  small  quantity  of  stimulants  become  insane,  any 
act  he  mav  commit  durinjx  such  temnorarv  insanitv 
is  partly  due  to  the  infirmity  as  well  as  to  the 
voluntary  act  by  which  he  submitted  himself  to 
the  influence  of  the  intoxicating  liquor.     It  may 

^  Russell  on  Crimes,  vol.  I,  p.  7. 


vm. 


rr 


16G 


ClilMES. 


be  argued  that  the  man  might  liavc  refrained, 
and  that  if  distinction  was  to  be  drawn  between 
his  and  any  ordinary  ease  of  drunkenness,  there 
could  be  no  reason  for  not  taking  the  capacity  of 
each  individual  to  take  stimuhmts  into  considera- 
tion in  every  case;  tliat,  as  it  is  a  fact  that  men 
can  upon  one  occasion  drink  with  impunity  what 
upon  anotlier  occasion  would  produce  drunken- 
ness, a  man  might  be  recognized  as  irresponsible 
to-day  for  an  act  which,  if  committed  yesterday, 
would  have  been  criminal.  But  it  is  not  upon 
such  ij-ronnds  that  a  distinction  should  be  drawn. 
It  would  nnquestionably  be  absurd  to  say  that 
any  act  committed  by  a  man  who  got  drunk  after 
drinking,  in  his  estimation,  moderately,  or  drink- 
ing such  a  quantity  as  he  had  repeatedly  imbibed 
without  any  loss  of  voluntary  power,  should  be 
regarded  as  irresponsible  for  the  criminal  acts 
which  miajht  ensue.  It  is  true  that  such  fine  dis- 
tinctions  are  out  of  place  in  law,  but  it  is  also 
true  that  the  law  might  recognize  the  fact  that 
there  is  in  almost  all  those  cases  in  which  tem- 
porary insanity  follows  upon  the  use  of  stinmlants 
in  those  who  have  suffered  from  some  cranial 
injury  or  diminution  of  the  power  of  self-control, 
a  loss  of  capacit^y  to  judge  accurately  concerning 
acts  and  their  consequences.  So  that  in  such 
a  case  a  man  does  not  voluntarily  make  himself 
drunk,  and  if  he  suffers  punishment  for  the  act 
committed  during  such  mental  aberration  he  no 


Chimks. 


10)7 


more  takes  the  consequences  of  his  own  acts  tliau 
a  horse  which  is  whipped,  because  he  carrii-s  u 
man  to  a  phiee  M'here  he  stok»,  does."  ' 

This  principle,  advocated  by  ^[r.  .l>rowjie  as  the 
true  one,  lias  been  recognized  by  some,  at  least,  of 
the  American  courts,  and  in  Scotland  also.  In 
Michigan  it  was  decided  tliat  if  a  person  be  sul)- 
ject  to  a  tendency  to  insanity,  wliich  is  liable  to 
be  excited  by  intoxication,  and  he  is  ignorant  of 
this  mental  condition,  having  no  reason  from  his 
past  experience,  or  from  information,  to  believe 
that  such  extraordinary  eifects  are  likelv  to  arise 
from  excessive  drinking,  he  ought  not  to  be  held 
responsible  for  such  extraordinary  effects  ;  and.  so 
far  as  a  jury  believes  that  his  actions  resulted 
from  this  unusual  state  of  affairs,  and  not  from 
the  natural  effects  of  his  use  of  the  intoxicatinjr 
cup,  or  from  previously  formed  intentions,  his 
liability  should  be  tested  by  the  same  standard  as 
is  the  responsibility  of  one  suffering  from  insanity 
alone/  Speaking  of  the  Scotch  law,  Alison 
says :  "  Drunkenness  is  no  excuse  for  crime ;  but 
on  the  other  hand,  if  either  the  insanity  has  su- 
pervened without  the  panel's  (the  prisoner  at  the 
bar)  having  been  aware  that  such  an  indulgence 
on  his  part  leads  to  such  a  consequence  ;  or  if  it 


'  The   Medical  Jurisprudence  of    Insanity. 
Taylor's  Med.  Jur.  II,  p.  596. 
"'Roberts  v.  People,  19  Midi.  101. 


See,  also, 


I- 


168 


Ckimrs. 


j.f;- 


has  arisen  from  the  continuation  of  drinkinj'  witl 


a  half  crazy  or  iniinn  state  of  mind,  or  a  previous 
Avound  or  iUness,  which  rendered  spirits  fatal  to 
the  transgressor's  intellect,  to  a  degree  unusual 
in  other  men,  or  which  could  not  have  been  an- 
ticipated, it  seems  inhuman  to  visit  him  with  the 
extreme  punishment  whicli  is  suitable  where  one 
conmiits  a  crime  when  simply  drunk.  In  this 
case  the  proper  course  is  to  commit,  but  in  con- 
sideration of  the  degree  of  infirmity,  recommend 
to  the  royal  mercy."  ^ 

The  German  doctrine  is  that  crime  com- 
mitted during  drunkenness  is  not  culpable  or 
punishable  in  any  of  the  following  cases :  First. 
When  one  drinks  only  moderately  (that  is,  does 
not  exceed  his  ordinary  allowance  which  does  not 
usually  produce  intoxication),  but  yet  the  highest 
drunkenness  ensues,  owing  to  the  properties  of 
his  liquor  being  changed  against  his  will,  and 
without  his  knowledge.  Second.  When  one 
drinks  under  circumstances  of  the  extraordinary 
effect  of  which  he  is  ignorant  (as  drinking  one's 
usual  allowance  in  a  wine-vault).  Third.  Where, 
although  drinking  immoderately  and  expecting 
to  get  drunk,  the  drinker  takes  measures  before- 
hand to  prevent  all  danger  to  others,  which,  how- 
ever, through  unforeseen  accidents,  prove  fruitless. 
Fourth.  When  the  intoxication  occurs  under  cir- 

'  Principles  of  Criminal  Law  of  Scotland,  654. 


Ckimks. 


tr»t» 


cuinstaiK'fs  ill  wliicli  it  is  only  tlirougli  ;i  co- 
oiH'ration  of  many  occumiii^  relations,  as  inorUid 
alfcctions,  particular  oxcituiiionts  by  others,  etc., 
that  a  quantity  of  liquor,  which  in  the  absence 
of  these  relations  would  not  give  rise  to  the 
highest  drunkenness,  produces  that  effect ;  and, 
fifth,  if  drunkenness  is  the  result  of  disease.* 

A  recent  writer  on  insanitv  thus  treats  of  the 
responsibility  of  those  whose  mental  derangement 
is  caused  by  druidvenness  ;  he  says  :  "  Voluntary 
drunkenness  is  no  excuse  for  crime,  and  *  *  * 
the  principle  of  this  tenet  is,  that  when  a  man, 
with  liis  eyes  open,  puts  himself  in  a  position  in 
which  lie  may  do  harm  to  others,  he  ought  to 
be  regarded  as  responsible  for  the  harm  done ; 
that,  although  the  act  may  be  involuntary,  the 
condition  in  which  volition  was  impossible  was 
brought  about  by  the  voluntary  act  of  the  indi- 
vidual, and  lie  must  be  regarded  as  responsible 
not  only  for  the  first  act  of  a  series,  but  for  all 
those  which  necessarily  and  directly  follow.  The 
rule  is  founded  upon  the  truest  principles  of  law. 
But  another  question  follows.  Does  a  man  con- 
template remote  possibilities  in  his  acts,  or  only 
proximate  probabilities  ?  If  he  contemplates  only 
the  latter,  it  would  be  wrouij:  to  make  him  re- 
sponsible  for  the  former.  Therefore,  it  is  lield  by 
law,  that  when  incapacitating  disease  is  the  i-esult 


'  Mitterinaier,  g  9. 


1 

i 

! 
1 

1 

,: 

i 

~ 


I    i 


170 


Crimes. 


of  long-contimied,  voluntary  excesses,  it  would  bo 
impolitic  to  hold  an  individual  thus   affected  as 
responsible  for  the  acts  which  he  might  commit 
under  the  influence  of  this  disease.     It  would,  it 
seems  to  us,  be  utterly  absurd  for  the  law  to  hold 
that  a  man  was  responsible  for  any  act  committed 
by  him  during  a  period  of  incapacity  —  if  that  in- 
capacity was  pi'oduced  by  a  voluntary  act,  how- 
ever far  the  cause  and  the  effect  were  dissociated 
as  regards  time.     If  such  were  the  law,  it  would 
be  impossible  to  make  out   real    irresponsibility, 
for  it  would   amount,  in    many  eases,  to   an   im- 
possibility to  determine  the  question  as  to  whether 
any  ordinary  mental  disease  was  caused   by  the 
acts  of  the  individual,  or  by  the  inexorable  cir- 
cumstances of  an  environment  in  space  and  time 
which  hie  determines.     We  would  go  too  far  to 
endeavor  to  trace  the  fault   of   rendering  one's 
self  incapable  to  such  a  remote  past,  because  it  is 
only  fair  to  hold  a   man   responsible  for   conse- 
quences which  an   ordinary  undfM'standing  could 
recognize  as  likely  to  follow  from  immediate  acts. 
True,  to  the  wise  man  evil  must  arise  m   time  to 
come  from  any  unvirtuous  action  in  the  present. 
But  the  laws  were  not  framed  with  reference  to 
wise  men,  but    mostly  with  a  careful   regard  to 
fools.    So  it  would  be  any  thing  but  just  to  regard 
the  volitional  element  in  the  inception  of  a  series 
of  events  as  giving  a  character  of  criminalitv  to 
any  subseq.ient  act  which  happened  to  be  against 


Crimes. 


171 


18 

It 


the  law,  for  it  is  evident  tliat  the  cerebral  con- 
ditions may  become  in  time  an  etlicient  cause  of 
the  act  without  the  intervention  of  the  v,  ill,  and 
even,  in  spite  of  the  verystroi  ,e.st  motlvo  which 
would  lead  in  an  ordinary  mdividual  to  abstinence 
from  the  act  in  question." 

So  considerate  is  the  law  for  lunnan  frailty  that 
it  deems  mental  unsoundness  superindu('ed  by 
excessive  drunkenness  and  continuiiiij:  after  the 
intoxication  has  subsided,  mav  be  an  excuse  for 
crimes  or  misdemeanors;^  althouf^li  it  holds  de- 
cidedly that  drunkenness  itself  is  no  ])ariiation. 
And  where  one  bv  constantlv  "tilling!:  his  head 
with  the  fumes  of  turbulent  liquor,''  has  caused 
an  habitual  or  lixed  frenzy,  he  is  considered  to 
be  in  the  same  position  as  if  his  madness  had 
been  at  the  first  contracted  involuntarilv.^ 

Where  one  w'ile  under  the  influence  of 
delu'iuin  tremens^  or  mania  d  potx,  commits  a 
crime,  the  insanity  under  which  he  is  laborin<^  ex- 
cuses the  crime,  provided  that  he  is  not  intoxicated 
at  the  time  he  did  the  deed ;  it  is  only  when  the 
wroni»:ful  act  is  done  while  the  ■•lan  is  out  of  his 
mind  because  actuallv  drunk  and  it  is  the  innne- 
diate  result  of  his  drunkenness^  that  he  is  punish- 
able."    This  was  decided  on  the  trial  of  Drew, 


'  Beaseley  v.  State,  50  Ala.  149. 

n  Hale,  32  ;  Bradley  v.  State,  31  Ind.  493. 

'United  States  v.  Drew,  ')  Mason,  28. 


1Y2 


Crimes. 


the  master  of  the  ship  ^'John  Jay,"  for  the 
murder  of  \iU  second  mate^  one  Charles  L.  Clark. 
The  defence  set  uj)  was  the  insanity  of  the  pris- 
oner at  tlie  time  of  the  liomicide.  It  appeared, 
that  for  a  considerable  time  before  the  fatal  act, 
Drew  had  heen  indulging  in  very  gross  and 
almost  continual  drunkenness;  that  about  five 
days  before  it  took  place  he  ordered  all  the  liquor 
on  board  to  be  tiirown  overboard,  wliich  was  ac- 
cordingly done.  He  soon  afterward  began  to 
betray  great  restlessness,  uneasiness,  fretfuhiess 
and  irritability;  expressed  his  fear  that  the  crew 
were  going  to  murder  him ;  and  complained  of 
persons  who  were  unseen,  talking  to  him,  and 
urging  him  to  kill  Clark,  and  his  dread  of  so  do- 
ing. He  could  not  sleep,  but  was  in  almost  con- 
stant motion  day  and  night.  The  night  before 
the  act,  lie  was  more  restless  than  nsual,  seemed 
to  be  in  great  fear,  [ind  said  that  whenever  he 
laid  down  there  were  persons  threatening  to  kill 
him  if  he  did  not  kill  the  mate.  In  short  he  ex- 
hibited all  the  marked  symptoms  of  delirium, 
tremens.  After  some  consultation  the  opinion 
of  the  court  was  delivered  by  Judge  Story,  who 
said,  ""We are  of  the  opinion  that  the  indictment 
upon  these  admitted  facts  cannot  bo  maintained. 
The  prisoner  was  unquestio.iably  insane  at  the 
time  of  committing  the  offence.  And  the  ques- 
tion made  at  the  bar  is,  whether  insanity,  whose 
remote  cause  is  habitual  drunkenness,  is,  or  is 


r'» 


Crimes. 


178 


not,  an  excuse  in  a  court  of  law  for  a  liomicido 
committed  by  the  party,  while  so  insane,  but  ]U)t 
at  the  time  intoxicated  or  under  the  intiuence  of 
liquor.  AYe  are  clearly  of  the  opinion  that  in- 
sanity is  a  competent  excuse  in  such  a  case. 
In  gereral,  insanity  is  an  excuse  for  every  crime, 
because  the  party  has  not  the  possession  of  that 
reason  wliich  includes  responsibility.  An  ex- 
ception is  where  a  crime  is  conmiitted  by  a  party 
while  in  a  state  of  intoxication,  the  law  not 
permitting  a  man  to  avail  himself  of  the  ex- 
cuse of  his  own  gross  vice  and  misconduct  to 
shelter  himself  from  the  legal  consequences  of 
such  crimes.  But  the  crime  must  take  place  and 
be  the  immediate  result  of  the  lit  of  intoxication, 
and  while  it  lasts,  and  not  —  as  in  this  case  —  a 
remote  consequence  superinduced  by  the  ante- 
cedent exhaustion  of  the  party,  resulting  from 
gross  and  habitual  drunkenness.  However  crimi- 
nal in  a  moral  point  of  view  such  an  indulgence 
is,  and  however  justly  a  l)arty  may  be  responsible 
for  his  acts  arising  from  it  to  Almighty  God,  hu- 
man tribunals  are  generally  restricted  from  pun- 
ishing them,  since  they  are  not  the  acts  of  a 
reasonable  being*.  Had  the  crime  been  committed 
when  Drew  \vas  in  a  fit  of  intoxication,  he  would 
have  been  liable  to  have  been  convicted  of  mur- 
der; as  he  was  not  then  intoxicated  but  merely 
insane  f"'om  an  abstinence  from  lupior,  he  cannot 
be  pronounced  guilty  of  the  offence.     Many  spe- 


a-i 


KjfNw- « 


m  f ; 


lu: 


174 


Crimes. 


cies  of  hisaiiitv  arise  remotely  from  what,  in  a 
moral  view,  is  a  criminal  neglect  or  fault  of  the 
party,  as  from  religious  melancholy,  undue  expos- 
ure, extravagant  pride,  ambition,  etc.  Yet  such 
uisanity  has  always  been  deemed  a  sufficient  ex- 
cuse for  anv  crime  done  under  its  influence.'' 

"The  law  looks  to  the  immediate  and  not  the 
remote  cause ;  to  the  actual  state  of  the  party  and 
not  to  the  cause  which  remotely  produced  it." 

This,  it  cannot  be  doubted,  is  good  law,  although 
few  opportunities  of  enunciating  it  have,  as  far  as 
we  know,  occurred  in  England.  It  has,  however, 
been   confirmed   by   other   judges   in   America. 

Thus,  in  Missouri,  while  it  was  expressly  laid 
down  that  "  temporary  insanity,  produced  im- 
mediately by  intoxication,  does  not  destroy  re- 
sponsibility for  crimes  where  the  patient,  when 
sane  and  responsible,  made  himself  voluntarily 
drunk,"  the  court  fui'ther  held  that,  to  be  pun- 
ishable, the  crime  must  be  the  immediate  result 
of  the  fit  of  intoxication  and  committed  while  it 
lasts,  and  not  the  result  of  insanity  remotely  oc- 
casioned by  previous  bad  habits.  In  the  latter 
case  it  was  decided  that  insanity  is  entitled  to  the 
same  consideration  as  when  arising  from  any 
other  cause.^  It  follows,  says  Browne,  that  the 
law  regarding  deliriuin  tremens,  as  it  must  do,  as 
a  mental  disease  caused  by  the  excessive  use  of 

'  State  V.  Hundley,  40  Mo.  414. 


CiiiMi;.s. 


lio 


intoxicating  liqnors,  and  as  due  to  liabitual  ex- 
cesses as  distin<;^uished  from  one  vijliuiTarv  de- 
banch,  cannot  regard  the  individual  tlius  alTected 
as  a  responsible  citizen;  otherwise  it  ('(»uld  not 
exempt  any  insaiie  person  from  the  severeist  pen- 
alties of  the  criminal  law.  It  is  most  dilHcnlt  to 
discover  the  genesis  of  disease.  In  many  c;uscs, 
if  the  truth  were  kn^wn,  insanity  other  than  clelir- 
iimi  tremens  is  the  direct  result  of  lonij^-iiiduh-'cd 
habits  of  vice,  and  so  long  as  the  law  deals  with 
these  npon  the  ordinary  principles  applicable  to 
mental  unsoundness,  so  long  must  it  deal  with  in- 
dividuals, laboring  nnder  delirium  tremein^^  in  the 
same  Avay  ;  and  such  is  actually  the  policy  and 
practice  of  the  law.  I3ut  to  excuse  crime  on  this 
ground  it  must  have  been  connnitted  during  the 
actual  insanitv  which  characterizes  it.^  AVvlie, 
who  was  tried  in  Glasgow,''  was  tried  for  nun-der 
committed  during  deliriam  tremens^  he  was 
found  not  guilty  in  consequence  of  his  insanity. 
Although,  as  has  been  seen,  voluntary  druidc- 
enness,  or  temporary  insanity  produced  imme- 
diately by  intoxication,  cannot  excuse  tlie  com- 
mission of  crime,  yet  Mdnn-e,  as  on  a  charge  of 
murder,  the  material  (piestion  is  whether  an  act 
was  premeditated  or  done  only  on  a  sudden  heat 
and  impnlse,  the  fact  that  the   accused   Mas  in- 


'  Per  Erle,  Ch.  J.,  Reg.  v.  T.eigli,  4  F.  &  F.  015. 
2  3  Irvine,  218. 


170 


Ckimks. 


■|.iti 


toxicated  has  been  taken  to  be  a  snbjeet  proper 
to  be  considered.'  And  so,  also,  wlien  the  (pies- 
tion  is  wlietiier  a  murder  is  of  the  Urst  or  second 
degree,  drunkenness  may  be  proved  to  show  the 
mental  state  of  the  accused  at  the  time  of  the 
act."^  In  Pennsylvania,  in  a  case  where  the  rule 
that  intoxication  is  an  aggravation  of,  rather  than 
an  excuse  for  crime,  and  that  if  short  of  destroy- 
ing reason  altogether  it  is  not  in  any  case  a  full 
defence,  was  affirmed,  it  was  decided  that  when 
the  destruction  of  reason  by  intoxication  is  so 
great  as  to  render  it  impossible  for  the  man  to 
form  any  complete  design  or  intention  to  commit 
murder  or  any  thing  else,  ])roof  of  the  intoxica- 
tion will  be  allowed  to  shed  light  on  the  mental 
status,  and  thereby  determine  whether  the  killing 
was  from  a  premeditated  purpose  or  from  passion 
excited  by  inadequate  provocation,  and  so  to 
reduce  the  grade  of  homicide  from  murder  in 
the  Urst  degree  to  murder  in  the  second  degree, 
or  from  homicide  to  manslaughter.^  But  caution 
is  necessary  in  the  application  of  tiiis  doctrine,  as 
there  may  be  many  cases  of  premeditated  murder 
in  which  the  prisoner  previously  nerves  himself 
for   the   deed   liy  liquor,  when   he  (with   Lady 

'  Rex  V.  Grindley,  1  Russ.  on  Crimes,  8 ;  but  see  Reg.  v. 
Carroll,  7  C.  &  P.  145. 

'-'  Colbath  V.  State,  2  Tex.  App.  391. 

■''Coin.  V.  TTart,  3  Brevvst,  546;  Kriel  v.  Com.,  5  Bush 
(Ky.),  301 ;  Payne  v.  State,  5  Tex.  App.  35. 


Croies. 


17 


Macbctli)  takes  that  which  makes  others 
dmiik  to  make  hiiu  bold,  and  that  whicii  hath 
quenclied  them  to  giv-c  him  fire.  In  such  eases, 
drunkenness  is  not  to  be  considered  as  a  circum- 
stance in  favor  of  the  prisoner  in  deteruiiniug 
the  degree  of  his  crime,  but,  on  the  contraiy, 
tends  to  elevate  the  olfencc  to  murder  in  the  lirst 
degree.^  The  burden  of  ])roving  that  his  intoxi- 
cation was  of  such  a  character  and  to  such  a 
degree  as  to  entitle  him.  to  have  it  considered  in 
mitigation,  rests  npon  the  accused.^ 

Even  though,  as  we  have  seen,  the  German 
doctrine  is  tluit  an  offence,  committed  bv  a  man 
in  the  highest  degree  of  unintentional  drunken- 
ness, is  imputable  to  the  offender  as  culpa  only 
(where  he  is  not  entirely  relieved  from  all  blame), 
still  the  jurists  of  Germany  hold  that  where  the 
accused  has  intentionally  made  himself  intoxi- 
cated that  he  might,  after  the  evil  deed  was  done,, 
plead  his  drunkenness  in  excuse,  a  crime  com- 
mitted by  him  in  that  state  is  punishable  a^:r7o/'^sy 
as  in  such  cases  the  criminal  intention  is  innne- 
diately  directed  to  the  crime  actually  committed. 
The  crime  (they  say)  seems  so  much  the  more  to 
be  committed  wilfully  as  even  during  the  drunk- 
enness the  mind  of  the  offender  is  constantly 

'  Willis  V.  Com.,  33  Gratt. ;  Com.  v.  Jones,  1  Leigb, 
598;  Pirtle  v.  State,  9  Humph.  GG3 ;  Boswell  v.  Com.,  20 
Gratt.  8G0. 

'''  Comm.  V.  Hart,  2  Brewst.  5-10. 
12 


I 


^"SL\  n 


U  •■  11 


178 


Crimes. 


m 


ml 


directed  toward  it ;  and  tlie  drinker,  who  wills  to 
commit  the  crime,  still  has  consciousness  enough 
to  recognize  and  be  influenced  bv  the  deterring 
motives  of  right  and  of  law.  As  to  the  principle 
which  ought  to  regulate  the  punishment  of  crimes 
committed  under  such  circumstances,  however, 
opinion  among  the  Germans  is  still  divided.* 

In  cases  which  involve  intention,  or  motive,  as 
well  as  action,  evidence  as  to  the  state  of  sobriety 
of  the  accused  is  adniissible  to  test  the  capacity 
to  decide  between  right  and  wrong."  As  Patte- 
soN,  J.,  once  remarked,  "  Although  drunkenness 
is  no  excuse  in  any  crime  whatever  it  is  often  of 
very  great  importance  in  cases  where  it  is  a 
question  of  intention.  A  person  may  be  so 
drunk  as  to  be  utterly  unable  to  form  any  inten- 
tion, and  yet  he  may  be  guilty  of  very  great 
violence." '  So,  where  on  the  trial  of  a  woman 
for  an  attempt  to  commit  suicide  it  appeared  that 
the  unfortunate  was  at  the  time  so  drunk  that  she 
did  not  know  what  she  was  doing,  it  was  held 
that  this  negatived  the  attempt  to  commit  felo  de 
se.*  In  a  case  of  malicious  stabbing  with  a  fork 
a  very  learned  judge  observed,  that  it  was  his 
duty  to  tell  the  jury  that  the   prisoner  being 


'  Mittermaier,  §  8. 

2  Reg.  V.  Gamlem,  1  F.  &  F.  90  ;  Wenz  v.  State,  1  Tex. 
App.  90. 

3  Reg.  V.  Cruse,  8  C.  &  P.  546. 
"Reg.  V.  Moore,  3  C.  &  K.  319. 


^w 


Crimes. 


179 


drunk  did  not  alter  the  nature  of  tlic  olTenco. 
If  a  man  chose  to  get  drunk  tliat  was  liis  (nvn 
voluntary  act ;  it  was  very  different  from  a  mad- 
ness not  caused  l)y  any  act  of  tlie  ])ers(>]i ;  that 
voluntary  species  of  madness  wliieii  it  is  in  a 
party's  power  to  abstain  from  lie  must  answer 
for.  But  that  with  regard  to  the  intention  drunk- 
enness might,  perhaps,  be  adverted  to  according 
to  the  nature  of  the  instrument  used.  If  a  man 
used  a  stick  a  jury  would  not  infer  a  malicious 
intent  so  strongly  against  him,  if  drunk  when  he 
made  an  intemperate  use  of  it,  as  they  would  if 
he  had  used  a  different  kind  of  weapon ;  but 
where  a  dangerous  instrument  was  employed, 
which  if  used  must  produce  grievous  bodily 
harm,  drunkenness  could  have  no  effect  on  the 
consideration  of  the  malicious  intent  of  the  party. 
The  prisoner  was  pronounced  guilty.'  In  another 
English  case,  the  prisoners  were  accused  of  killing 
a  child  by  beating  and  kicking  her,  knocking  her 
head  airainst  a  beam  and  then  throwiuii;  her 
down  upon  a  brick  floor.  Patteson,  J.,  told  the 
jury  that  if  they  were  not  satisfied  that  the  pris- 
oners had  formed  a  positive  intention  of  murder- 
ing the  child  they  might  find  them  guilty  of  an 
assault ;  and  this  was  the  verdict  of  the  twelve 
men.  In  Michigan  it  was  decided  that  one  who 
took  the  property  of  another,  while  too  drunk  to 

1  Kex  V.  Meakin,  7  C.  &  P.  297. 


180 


Crimes. 


; 


•  '■'  ■"  iR 


i,  '2 


I  ! 


be  able  to  form  any  intent  with  regard  to  his 
action,  could  not  be  convicted  of  hirceny.'  And 
wliere  there  is  a  question  of  knowledge,  as  where 
one  is  accused  of  passing  a  counterfeit  bill,  the 
intoxication  of  the  accused  is  a  circumstance 
proper  to  be  sul>mitted  to  the  consideration  of  a 
jury,  and  should  have  its  just  weight  in  de- 
termining where  he  knew  the  bill  was  a  forgery 
or  not." 

So,  in  England,  drunkenness  may  be  taken  into 
consideration  in  cases  where  what  the  law  deems 
sutHcient  provocation  has  been  given  ;  because, 
in  such  cases,  the  question  is,  whether  the  fatal 
act  is  to  be  attributed  to  the  passion  of  anger  ex- 
cited by  the  previous  provocation ;  and  that 
passion  is  more  easily  aroused  in  a  person  when 
in  a  state  of  intoxication  than  when  he  is  sober/ 
The  refusal  by  a  landlady  to  serve  a  drunken  sol- 
dier witli  a  pint  of  beer,  or  to  converse  with  him, 
or  a  threat  that  she  will  report  him  to  his  com- 
manding otficer,  is  not  sufficient  provocation  for 
an  attack  upon  her  with  a  bayonet ;  and,  as  the 
woman  died  from  the  effect  of  the  wounds  given 
her,  the  jury,  under  the  direction  of  Park,  J., 
found  the  prisoner  guilty  of  murder,  and  he  was 
executed/ 


» People  V.  Walker,  38  Midi.  156. 
*  Piginan  v.  State,  14  Ohio,  555. 
3  Rex  V.  Thomas,  7  C  &  P.  817. 
''Ilex  V.  Carroll,  7  C.  &  P.  U5. 


^ 


Chimes. 


181 


On  this  side  of  tlie  Atlantic  it  has  also  hccn 
held  that  where  a  jirovocation  lias  boon  recoived, 
which,  if  acted  upon  instantly,  would  uiitioate 
the  offence  of  a  sober  man,  and  the  (jiicstioii,  in 
the  case  of  a  drunken  man,  is  whether  the  provo- 
cation was  in  truth  acted  upon,  evidence  of  intox- 
ication may  be  considered  in  deciding  that  (pies- 
tion.'  In  Kentucky  the  court,  on  the  trial  of  one 
indicted  for  homicide,  conunitted  while  di'unk, 
considered  that  the  fact  of  the  drunkenness,  while 
it  might  be  a  circumstance  showing  the  absence 
of  malice,  should  not  be  singled  out  from  the 
other  evidence,  and  held  up  to  the  jury  as  a  miti- 
gation of  the  offence.  The  court  laid  down  the 
proper  rule  to  be,  that  one  in  a  voluntary  state  of 
intoxication  is  subject  to  the  same  rule  of  conduct 
and  the  same  rules  and  principles  of  law  that  a 
sober  man  is,  and  that  where  provocation  is  offered, 
and  the  one  offering  it  is  killed,  if,  and  only  if,  it 
would  mitigate  the  offence  in  a  sober  man,  it  will 
mitigate  the  offence  in  a  drunken  man.'  It  would 
appear,  therefore,  that  the  English  judges  are  a 
little  more  lenient  to  the  druidcard  than  are  the 
American  courts,  and  it  would  seem  ris^htlv  so. 

If  the  evidence  shows  a  previously  formed  de- 
termination to  resent  a  slight  affront  in  a  barbarous 
manner,  the  state  of  drunkenness  in  which  the 


'  State  V.  McCaubs,  1  Spears,  384. 
'Shannahaa  v.  Com.,  8  Bush,  464. 


IMAGE  EVALUATION 
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Photographic 

Sdences 

Corporation 


% 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)873.4503 


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x82 


Crimes. 


!     h 


prisoner  was  at  the  time  lie  did  the  deed  must 
not  be  regarded  ;  it  will  furnish  no  excuse.  Upon 
the  trial  of  an  indictment  for  stabbing,  the  jury 
may  take  into  consideration,  among  other  circum- 
stances, the  fact  of  the  prisoner  being  intoxicated 
at  the  time  he  struck  the  blow,  in  order  to  deter- 
mine whether  he  acted  under  a  hand  fide  appre- 
hension that  his  person  or  property  was  about  to 
be  attacked  or  not.^ 

Where  the  question  is  whether  words  of  threat- 
ening were  uttered  with  a  deliberate  purpose,  or 
were  merely  low  and  idle  expressions,  the  drunk- 
enness of  the  party  using  them  is  proper  to  be 
considered." 

If  a  statute  makes  an  offence  to  consist  in  an 
act  committed  with  a  particular  intent,  the  rule 
that  voluntary  intoxication  does  not  excuse  acts 
which  constitute  an  offence  includes  only  the  con- 
sequences which  do  actually  ensue  —  the  crime 
actually  committed, —  and  not  the  intent  charged, 
if  the  defendant  was  at  the  time  incapable  of  en- 
tertaining it,  and  did  not  in  fact  entertain  it." 

Sometimes  drunkenness  affects  not  only  the 
mental  condition  of  a  man,  but  also  his  physical 
ability  to  commit  the  crime  of  which  he  is  ac- 


'  Marshall's  case,  1  Lewin,  76. 
«Rex  V.  Thomas,  7  C.  &  P.  817. 

8  Roberts  v.  People,  19   Mich.    101;  Pirtle    v.   State,  9 
Humph.  663 ;  People  v.  Harris,  89  Cal.  678. 


Crimes. 


183 


cused ;  then  it  is  a  necessary  factor  in  determin- 
ing the  nature  and  character  of  the  acts  of  the 
party  accused,  as  well  as  his  purpose  and  intent 
in  doing  them.^ 

If  no  inducement  has  been  held  out  to  a  crimi- 
nal relating  to  the  charge  preferred  against  him, 
it  matters  not  in  what  way  a  confession  is  ob- 
tained from  him.  It  can  be  used  against  him 
whether  he  was  induced  to  make  it  by  fair  means 
or  foul ;  by  being  made  drunk,''  or  even  by  de- 
ception being  practiced  upon  him,  as  in  the  case 
of  the  old  ruffian  in  Mary  Annerly.  It  will  be 
equally  admissible  however  much  the  mode  of 
obtaining  it  may  be  open  to  censure,  or  may  ren- 
der the  statement  itself  liable  to  suspicion.' 

>  Terrell  v.  Sta.e,  48  Tex.  503. 
»  R.  V.  Spilsbury,  7  C.  &  P.  187. 
»  Taylor  on  Evidence,  §  804. 


t      f 


'i!    ' 


184 


Civil  Ebmbdy. 


CHAPTER  XIY. 
CIVIL  REMEDY. 


Various  States  and  Legislatures  have  passed 
statutes  giving  a  right  of  action  for  damages 
caused  by  the  sale  of  intoxicating  liquors.  These 
acts  do  not  pretend  to  interfere  with  the  sale,  but 
merely  endeavor  to  give  redress  and  compensa- 
tion for  the  injury  actually  suffered  through  the 
sale,  and  to  make  the  seller  responsible  for  the 
injurious  results  of  his  acts,  as  others  —  carriers, 
agents,  physicians  —  are  held  liable.  These  laws 
do  not  say  to  the  trafficker  in  strong  drink,  "  Thou 
shalt  not  sell,"  but  onlv  "  Take  heed  how  thou 
sellest,  and  to  whom  thou  sellest."  ^ 

The  purpose  of  these  acts  is  the  suppression  of 
intemperance,  pauperism  and  crime.  It  cannot 
be  doubted  by  any  observant  and  intelligent  per- 
son that  the  use  of  intoxicating  liquor  is  the 
fruitful  source  of  many  of  the  evils  which  affect 
society.  Pauperism,  vice  and  crime  are  the  usual 
concomitants  of  the  unrestrained  iudulgence  of 
the  appetite  for  strong  drink.  Impoverishment 
of  families,  the  imposition  of  public  burdens,  in- 

«  Bedore  v.  Newton,  34  N.  H.  117 ;  Bertholf  v.  O'Reilly, 
15  N.  Y.  Sup.  Ct.  16. 


Civil  Remedy. 


X85 


security  of  life  and  property,  are  consequences  of 
the  prevalence  of  the  great  evil  of  intemperance.* 
While  alcoholic  stimulants  are  recognized  as 
property  and  entitled  to  the  protection  of  law, 
ownership  in  them  is  subject  to  such  restraints 
as  are  demanded  by  the  higiiest  considerations  of 
public  expediency.  Enactments  restraining  free 
trade  in  intoxicants  are  regarded  as  police  regu- 
lations established  for  the  prevention  of  pauper- 
ism and  crime,  for  the  abatement  of  nuisances 
and  the  promotion  of  public  health  and  safety. 
They  are  a  just  restraint  of  an  injurious  use  of 
property  which  the  Legislature  has  authority  to 
impose,  and  the  extent  to  which  such  interference 
may  be  carried  must  rest  exclusively  in  legislative 
wisdom,  where  it  is  not  controlled  by  fundamen- 
tal law.  It  is  a  settled  principle  essential  to  the 
rights  of  self-preservation  in  every  organized  com- 
munity, that  however  absolute  may  be  the  own- 
er's title  to  his  propej^ty,  he  holds  it  under  the 
implied  condition  that  its  use  shall  not  work  in- 
jury to  the  equal  enjoyment  and  safety  of  others 
who  have  an  equal  right  to  the  enjoyment  of 
their  own  property,  nor  be  injurious  to  the  com- 
munity. "  /Sic  lotere  tuum  ut  alienum  non  Imdas,^^ 
is  what  the  law  says  to  each  and  every  one." 


*  Bertholf  v.  O'Reilly,  supra,  per  Andrews,  J. 

*  Lawson's,  The  Civil  Remedy  for  Injuries  arising  from 
Intoxicating  Liquors.  Great  use  lias  been  made  of  tliis 
booklet  in  this  chapter. 


^M 


186 


Civil  Remedy. 


i 


11 


W  :■!: 


In  the  States  of  Maine,  Indiana,  Pennsylvania, 
Rhode  Island  and  Vermont,  any  person,  not 
authorized  by  la'.v,  or  in  a  manner  not  authorized 
by  law,  selling  intoxicating  liquor  is  liable  for 
all  the  injuries  committed  by  the  person  to  whom 
it  is  sold,  while  intoxicated.  Even  giving  the 
liquor  will  in  some  of  the  States  make  the 
giver  liable.  In  "New  Hampshire  and  Ver- 
mont, in  case  of  the  death  or  injury  of  any  per- 
son in  consequence  of  intoxication  from  the  use 
of  liquor  unlawfully  furnished,  damages  may  be 
recovered  by  any  one  dependent  upon  the  injured 
party,  or  upon  whom  the  in j urea  party  is  depend- 
ent for  support,  from  the  person  unlawfully  sell- 
ing or  furnishing  the  intoxicant.* 

In  Illinois,  Kow  York,  Ohio,  Nebraska,  West 
Virginia,  Connecticut,  Iowa,  Kansas,  Wisconsin, 
Michigan  and  Massachusetts,  even  more  stringent 
laws  are  in  force,  whereby  a  right  of  action  is 
given  for  the  evil  consequences  of  intoxication 
without  regard  to  the  lawfulness  of  the  sale ;  and 
in  most  of  these  States  the  same  responsibility  is 
incurred  even  if  the  drink  is  a  free  gift.  Every 
husband,  wife,  child,  parent,  guardian,  employer 
or  other  person,  injured  in  person,  or  property, 
or  means  of  support,  by  any  intoxicated  person, 
or  in  consequence  of  the  intoxication,  habitual  or 
otherwise,  of  any  person,  has  a  right  of  action  in 


Hollis  V.  Davis,  56  N.  II.  74, 


Civil  Remedy. 


187 


his  or  her  own  name,  severally  or  jointly,  against 
any  person  who  shall,  by  selling  or  giving  away 
intoxicating  Hquors,  have  caused  the  intoxication, 
in  whole  or  in  part,  of  any  person,  for  all  damages 
sustained  from  the  effects  of  such  intoxication, 
and  also  for  exemplary  damages.  In  some  of 
these  States  the  seller  or  giver  of  these  dangerous 
beverages  is  further  liable  to  recoup  any  one  who 
has  taken  care  of  or  provided  for  the  drunken 
man  while  intoxicated,  and  for  keeping  him  in 
consequence  of  such  intoxication.  Further  still 
go  the  laws  of  New  York,  Illinois,  Michigan  and 
Ohio,  and  say  that  the  owner  of  any  building 
knowingly  permitting  his  premises  to  be  used  for 
the  sale  of  intoxicating  liquor  shall  be  jointly  and 
severally  liable  with  the  dram-seller  for  all  dam- 
ages arising  from  the  gift  or  sale  of  the  intoxi- 
cants ;  and  in  Illinois,  Iowa  and  Ohio  any  judg- 
ment recovered  against  the  owner  of  the  build- 
ing becomes  a  lien  upon  the  premises.  Now,  in 
Ohio  and  Wisconsin,  the  liability  of  the  seller 
has  been  restricted  to  cases  where  he  sells  after 
notice  given  him  not  to  sell. 

Numerous  have  been  the  decisions  under  these 
various  acts;  well-nigh  every  word  has  been 
weighed  in  the  scales  of  justice,  and  every  point 
of  attack  and  defence  hotly  contested  by  interested 
parties,  and  calmly  adjudicated  upon  by  impartial 
judges.     Like  the  Statute  of  Frauds,  every  line 


I"! 
I  [  !, 


188 


Civil  Remedy. 


has  cost  a  subsidy.  The  "  other  person,"  referred 
to  after  the  husband,  wife,  et  hoc  genus  omne, 
does  Dot  include  within  its  wide  embrace  the 
drinker  himself,  should  he  chance  to  be  injured 
through  his  own  bad  habits.  On  one  occasion  a 
man  while  drunk  had  his  pockets  picked ;  he  sued 
tiie  person  who  sold  him  that  which  had  stolen 
his  brains  away.  The  court  remarked  that  it  is 
a  sensible  and  well-understood  rule  of  construc- 
tion that  when,  after  an  enumeration,  a  statute 
employs  some  general  term  to  embrace  other 
cases,  the  other  cases  must  be  understood  to  be 
cases  of  the  same  general  character,  sort  or  kind 
with  those  named:  and  applying  this  rule,  the 
party  intoxicated  is  excluded.  The  persons  enu- 
merated are  persons  who  stand  to  him  in  special 
relations,  and  it  is  therefore  assumed  that  "  any 
other  person "  who  may  sue  must  also  stand  to 
him  in  some  special  relation  so  as  to  be  injured 
by  the  intoxication.  But  he  could  not  stand  in 
any  such  relation  to  himself.* 

The  "  any  person  "  spoken  of  as  selling  or  giv- 
ing away  intoxicating  liquors  includes  master, 
owner,  son,  clerk,  or  servant.'  A  master  is  lia- 
ble for  the  acts  of  his  servants  done  in  the  course . 
of  his  business  or  employment,  even  though  in 
the  particular  transaction   in   question  his  com- 

'  Brooks  V.  Cook,  7  Northw.  Rep.  216. 
^  Worley  v.  Spurgeon,  88  Iowa,  465. 


I' : 
i; 


ll! 


Civil  Rkmedy. 


180 


inand  has  been  disobeyed.  One  Forrester  tried 
to  evade  the  law  by  having  the  liquor  sold  by 
his  cook  in  his  kitchen.  As  Judge  Bleckley 
said,  "  In  his  kitchen,  by  liis  servant  in  his  pres- 
ence, and  with  his  co-operation  through  the 
responses  ^go  to  Mary'  and  ^ give  the  money  to 
Mary,'  the  traffic  was  carried  on.  There  is  little 
doui)t  the  defendant  was  the  deity  of  this  rude 
shrine,  and  that  Mary  was  only  the  ministering 
priestess.  But  if  she  was  the  divinity  and  he  her 
attending  spirit  to  warn  thirsty  devotees  where 
to  drink,  and  at  whose  feet  to  lay  their  tribute, 
he  is  amenable  to  the  State  as  the  promoter  of 
forbidden  libations.  Whether  in  these  usurped 
rights  he  was  serving  Mary  or  Mary  him,  may 
make  a  difference  with  the  gods  and  goddesses, 
but  makes  more  with  men.'  "  *  A  master  is  not 
excused  for  the  negligent  conduct  of  his  servant 
because  he  told  him  to  be  careful,  nor  for  his 
frauds  because  he  told  him  to  be  honest.  He  is 
not  responsible  for  wrongs  done  by  a  servant  out- 
side his  employment  and  unauthorized,  lior  if  the 
drunkard  helped  himself  to  the  liquor  without 
the  consent  of  owner  or  servant."  If  a  servant 
disobeys  his  master's  express  command  and  sup- 
plies liquor  to  one  whom  he  is  .?orbidden  to  fur- 
nish it,   the   master   will    not    be    mulcted   in 


'  Forrester  v.  State,  63  Ga.  349. 

*  Kreiter  v.  Nichols,  38  Mich.  496 ;  Peterson  v.  Knoble^ 
35  Wis.  80 ;  Smith  v.  Reynolds,  8  Hun,  128. 


Ill 


h 


II 


!  T 

';  I'- 


190 


Civil  Remedy. 


exemplary  damages,  although  he  would  be  so 
punished  ordinarily  for  sales  made  by  his  serv- 
ants within  the  scope  of  their  authority/ 

It  is  no  defence  that  the  intoxication  was 
caused  partially  by  liquor  sold  by  some  one  else ; 
it  is  enough  if  that  supplied  by  the  defendant 
was  in  whole  or  in  part  the  cause  of  the  intoxica- 
tion. For  the  law  is  that  where  the  separate  acts 
of  two  wrong-doers  contribute  to  and  jointly 
cause  the  wrong,  each  is  responsible  as  though  he 
were  the  sole  ill-doer,  of  course  the  act  must 
stand  in  the  line  of  direct  causation.  If  a  glass 
of  whisky  is  sold  one  day  and  it  simply  awakens 
an  appetite  which  months  after  causes  the  party 
to  seek  and  drink  liquor  to  excess,  such  sale  can- 
not be  said  to  be  in  the  line  of  direct  causation ; 
ut  where  the  liquor  sold  is  part  of  that  which 
directly  produces  the  intoxication  during  which 
the  injury  is  done,  the  sale  is  within  the  statute, 
even  though  it  appears  that  others  sold  intoxi- 
cants which  contributed  to  the  drunkenness.  In 
other  words  it  is  sufficient  if  it  appears  that  the 
liquor  sold  was  either  solely,  or  with  what  was 
supplied  by  others  at  or  about  the  same  time,  the 
direct  cause  of  the  drunkenness."  When  several 
persons  furnish  intoxicating  beverages  to  one  who 

'  Kehrig  v.  Peters,  41  Mich.  475 ;  Brantigan  v.  White, 
73  111.  156. 

''Werner  v.  Edmiston,  24  Kans.  ;  Woolheather  v. 
Risley,  80  Iowa,  486. 


Civil  Remedy. 


191 


commits  a  trespass  while  under  tlie  influence 
of  the  drinkables  so  supplied  they  are  jointly 
liable,  and  each  is  liable  for  the  injury  done 
by  all,  and  all  may  be  sued  together,  or  tliey 
.may  be  sued  separately,  but  thsre  can  be  only 
one  satisfaction  for  the  injiiry.'  Although, 
indeed,  it  has  been  held  under  the  !Ne'»v  York 
statute,  and  even  under  the  Iowa  act,  that  a 
joint  action  will  not  lie  against  two  or  more 
persons  who  separately,  at  different  times  and 
at  different  places,  and  without  any  connection 
with  each  other,  have  each  sold  liquor  which 
contributed  to  produce  the  intoxication  causing 
the  mischief  complained  of."  Under  the  Maine 
law  of  1872,  if  A.  sells  to  B.,  and  B.  to  C,  and 
C.  being  thereby  made  drunk  injures  D.,  D.  can 
recover  from  B.,  but  not  from  A.' 

Where  the  damage  proceeds  not  from  a  particu- 
lar act  of  intoxication,  but  rather  from  a  general 
besotted  condition,  those  w^hose  wares  have  re- 
duced the  drinker  to  that  condition  are  not  jointly 
liable  with  those  whose  liquid  poison  was  the  im- 
mediate cause  of  the  act.* 

'  Bodge  V.  Hughes,  53  N.  H.  616  ;  Kearney  v.  Fitzgerald, 
43  Iowa,  580  ;  Emory  v.  Addis,  71  111.  273. 

*  La  France  v.  Krayer,  43  Iowa,  143 ;  Bertliolf  v. 
O'Reilly,  15  N.  Y.  Sup.  Ct.  16;  Jackson  v.  Brookins, 
5  Hun,  530. 

8  Bush  V.  Murray,  66  Me.  472. 

*  Hitchnex  v.  Ehlers,  44  Iowa.  40. 


M: 


•192 


Civil  Remedy. 


ill 


1 1- '' 


i.m' 


Mere  inactivity  on  the  part  of  a  landlord  to 
find  out  that  intoxicating  drinks  are  sold  on  his 
premises,  or  a  failure  to  take  steps  to  prevent 
such  a  use  of  the  premises^  will  not  make  him 
liable  under  these  statutes ;  he  will  not  be  respon- 
sible unless  he  does  some  affirmative  act  signify- 
ing his  assent  to  the  use  of  his  property  for  the 
liquor  tratfic,  or  his  permission  for  its  continu- 
ance.' Nor  is  this  too  severe  upon  the  landlord, 
for  he  certainly  has  power  to  prevent  the  use,  by 
his  tenant,  of  his  premises  for  illegal  purposes,  and 
he  can  restrain  the  use  of  his  property  for  a  pur- 
pose different  from  that  for  which  it  was  leased,  or 
for  a  purpose  winch  may  be  dangerous."  And  the 
Court  of  Appeals  in  New  York  State  has  de 
cided  that  the  Legislature  has  full  power  to  create 
a  cause  of  action  for  damages  in  favor  of  a  per- 
son injured  in  person  or  propeHy  by  the  act  of 
an  intoxicated  person,  against  the  owner  of  real 
property,  whose  only  connection  with  the  injury 
is,  that  he  leased  the  prepiises  where  the  liquor 
causing  the  intoxication  was  sold  or  given  away, 
with  knowledge  that  intoxicants  were  to  be  sold 
therein.' 

In  Illinois,  Ohio,  New  York  and  Michigan  the 

*  State  V.  Ballingall,  43   Iowa,  87 ;  State  v.  Abraham,  6 
Iowa,  117. 

*  Bennett  v.  Sadler,  14  Ves.  526  ;    Mayor  v.  Bolt,  5  id. 
129. 

3  Betholf  v„  O'Reilly,  supra. 


Civil  Remedy. 


193 


sale  or  gift  of  intoxicating  iiquor,  contrary  to 
the  statute,  works  a  forfeiture  of  all  the  rights  of 
the  tenant  under  any  lease  in  the  premises  where 
such  unlawful  sale  or  gift  takes  place.  In  one 
case  liquor  was  ilV  j,-  ily  sold  in  a  grocery  situate 
on  a  three  Inmdrcd  and  fifty  acre  lot,  and  it  was 
held  that  the  lease  of  the  whole  place  was  for- 
feited.* No  right  of  lien  is  acquired  against  tiie 
premises  until  judgment  is  recovered  against  the 
owner." 

The  statutes  of  Illinois,  Iowa,  Kansas,  Michi- 
gan, New  York,  Ohio  and  Wisconsin  give  a  right 
of  action  for  three  separate  descriptions  of  in- 
juries caused  by  the  sale  of  intoxicating  liquors, 
viz. :  to  the  person,  to  property,  to  means  of  sup- 
port ;  and  unless  an  injury  in  one  or  other  of  these 
respects  is  proved,  no  recovery  can  be  had.' 

To  sustain  an  action  for  an  injury  to  "  the  per- 
son," some  actual  violence  or  physical  injury  to 
the  person  or  health  must  be  proved.  Fear, 
mortification,  sorrow,  loss  of  the  drinker's  society, 
are  not  enough  to  entitle  a  wife  to  recover  dam- 
ages.* But  being  driven  out  of  her  home  through 
the  threats,  abusive  language  and  intimidation  of 
a  drunken   spouse,  and  being  kept   outside  for 

'  McGarvey  v.  Puckett,  27  Ohio  St.  672. 
»  Bellinger  v.  Griffith,  23  Ohio  St.  619. 
"Fentz  V.  Meadows,  7?.  111.  540. 

« Mulford  V.  aewell,  21  Ohio  St.  193 ;  Koeraer  v,  Oberley, 
56  Ind.  254. 

13 


M^d 


If 


i 

I' 
i  ii 


il'r 


194 


Civil  Remedy. 


several  hours,  is  a  physical  injury  sufficient  to 
maintain  an  action.'  A  man  may  curse  and  swear 
at  his  wife  to  his  heart's  content,  may  call  her  the 
foulest  of  foul  names  before  her  neighbors,  and 
may  actually  threaten  to  shoot  her,  without  ren- 
dering his  friend  the  tavern-keeper  liable  for  dam- 
ages, unless,  indeed,  the  violence  of  his  tongue 
has  actually  impaired  her  health.' 

One  Sager  sold  liquor  to  a  young  man,  who 
became  intoxicated  by  it,  and  when  driving  Mrs. 
Aldrich,  his  mother-in-law,  home,  upset  the  wagon 
and  broke  her  arm  {in  mno  Veritas).  Mr.  A. 
sued  S.  for  the  loss  of  his  wife's  services,  and  the 
expenses  of  medical  attendance  upon  her,  and 
recovered  compensation.*  Any  violent  inter- 
ference with  one's  person  is  in  law  an  injury. 

Damages  caused  through  squandering  the 
drinker's  own  property,  his  wife's,  or  any  one 
else's,  even  money  paid  for  the  fiery  liquid  itself,* 
or  the  value  of  the  property  destroyed  by  the 
intoxicated  man,  may  be  recovered  against  the 
seller.'  Young  Bertholf  took  his  father's  horse 
and  buggy  to  drive  on  Sunday,  July  18,  1875, 

>  Peterson  v.  Knoble,  35  Wis.  80. 

"AlbrecUt  v.  Walker,  73111.  79;  Calloway  v.  Laydon,  47 
Iowa,  456. 

816  N.  Y.  Sup.  Ct.  537. 

*  Mulford  V.  Clewell,  supra  ;  Kllborn  v.  Coe,  48  How, 
(N.  Y.)  141 ;  Hemmes  v.  Bentley,  32  Mich.  89. 

» Woolheather  v.  Risley,  38  Iotvb,  187. 


Civil  Kemedy. 


195 


and  went  not  to  •where  lie  said  he  was  going,  but 
to  Firnhaber's  hotel,  and  drank  whisky  several 
times  at  the  bar ;  drove  some  miles,  drank  aa-ain, 
returned  to  Firnhaber's  and  had  another  drink. 
In  consequence  of  these  repeated  potations  the 
youth  became  drunk,  cut  some  bacchanalian  an- 
tics on  the  street,  and  was  arrested  for  disorderly 
conduct ;  he  was  detained  in  custody  for  a  time, 
and  being  set  at  liberty  started  for  home  ;  on  the 
way  his  driving  oui,-jehued  Jehu,  so  that  the  liorse 
died  from  being  driven  so  furiously.  The  saloon- 
keeper at  Firnhaber's  hotel  and  the  owner  of 
the  premises  were  sued  by  old  Bertholf ;  the  jury 
found  that  the  horse  died  from  over-driving,  and 
that  the  cruel  treatment  arose  from  the  driver's 
drunkenness,  and  so  both  defendants  were  held 
liable  for  the  value  of  the  horse.^ 

The  term  "means  of  support''  has  been  vari- 
ously explained ;  broadly,  it  relates  to  whatever 
a  husband  might  have  earned  or  made  by  his  labor 
and  attention  to  business,  and  contributed  to  the 
maintenance  of  his  family.''  Diminution  of  in- 
come, or  loss  of  property,  does  not  constitute  an 
injury  to  means  of  support  within  the  fair  intend- 
ment of  the  statute,  if  the  complaining  party 
has — notwithstanding  the  act  complained  of — still 
adequate   means  of  maintenance  from   accumu- 


lli 


1  Bertholf  v.  O'Reilly,  8  Hun,  16. 
« Wightman  v,  Devere,  33  Wis,  570. 


I 


i 


196 


Civil  Remedy. 


lated  capital  or  property ;  or  if  tho  income  re- 
maining is  eufiicient  for  the  support  of  those  in- 
terested. The  acts  are  intended  to  protect  the 
helpless  and  the  dependent,  not  to  assist  to  fill  the 
already  overflowing  coffers  of  the  rich  or  inde- 
pendent.* The  law  considers  that  a  man  is  bound 
to  supply  his  family  with  the  necessaries,  and  if 
possible  many  of  the  comforts,  of  life,  even  if  he 
has  to  work  to  enable  him  to  do  so ;  a  wife  (or 
child)  has,  therefore,  an  interest  in  his  capacity  to 
labor — in  his  wage-earning  power,  and  as  his  in- 
toxication itself  affects  his  ability  to  work,  it 
alone  gives  her  a  cause  of  action  ;  and  that,  too, 
if  only  her  future  maintenance  has  been  affected.' 
The  fact  that  the  wife  has  a  muscular  arm,  is 
able-bodied,  and  can  earn  a  livelihood  for  herself 
by  brain  or  hand,  or  has  some  separate  estate 
of  her  own  wherewith  to  keep  the  wolf  from 
the  door,  will  not  affect  her  rights  in  this 
matter'  If  a  husband,  when  sober,  and  in  the 
possession  of  all  his  faculties,  either  cannot  or 
will  not  work,  and  the  wife  has  in  fact  to  main- 
tain him,  she  cannot  be  said  to  be  injured  in  her 
means  of  support  by  his  intoxication.*  In  one 
case  the  husband  was  a  cripple,  and  able  to  earn 


'  Volans  V.  Owen,  IG  N.  Y.  Sup.  Ct.  658. 

«  Schneider  v.  Hosier,  21  Ohio  St.  99  ;  Mulford  v.  Clewell, 

supra. 

8  Hackett  v.  Smelsley,  77  111.  109. 
*  Wightman  v,  Devere,  supra. 


Civil  Kemp:dy. 


197 


but  little  for  the  support  of  liis  wife  and  four 
children,  but  he  had  a  quarterly  pension  of  fifty- 
four  dollars ;  one  pay-day  he  got  drunk  at  the 
defendant's  and  lost  $50.  The  wife  sued  for  the 
amount  lost,  but  the  court  held  tliat  slie  could  only 
recover  her  proportionate  share,  namely,  one  fifth.' 

If  a  father  suffers  an  injury  to  his  means  of 
support  by  the  intoxication  of  his  son  he  may 
maintain  an  action  against  the  seller  of  the  cup 
that  inebriates ;  but  he  must  show  that  his  son's 
services  were  necessary  to  his  support,  or  that  the 
ciiarge  or  expenses  brought  upon  him  by  his 
child's  illness  and  incapacity,  consequent  upon 
the  intoxication,  diminished  liis  means  so  as  to 
render  them  inadequate  to  his  maintenance.'' 

In  New  York,  the  judges  have  not  fully  con- 
curred in  the  meaning  given  to  this  phrase  by  the 
courts  of  some  of  the  other  States.^ 

If  one  while  drunk,  and  in  consequence  of  his 
drunkenness,  receives  injuries  which  start  him 
on  the  journey  to  that  bourn  from  which  no 
traveler  returns,  an  action  will  lie  against  tlie 
vendor  of  the  liquors  at  the  suit  of  his  wife  or 
child.*     This  was  at  one  time  doubted  under  the 


>  Franklin  v.  Scliermerhoru,  15  N.  Y.  Sup.  Ct.  113. 

« Volans  v.  Owens,  10  N.  Y.  Sup.  Ct.  S.jS. 

8  Hayes  v.  Phelan,  4  Hun.  738. 

*  Emory  v.  Addis,  71  111.  273;  Jackson  v.  Brookins,  5 
Hun,  533;  Rafferty  v.  Buckman,  46  Iowa,  195;  Roose  v.  Per- 
kins, 9  Neb.  304;  31  Am.  Rep.  409. 


198 


CrviL  Remedy. 


1  k^ 


11 


New  York  statute,  but  later  decisions  have  set 
the  matter  at  rest  in  that  State ;  all  injuries  that 
are  corsequent  upon  intoxication,  it  is  now  held, 
are  w^ithin  the  terms  of  the  act ;  if  death  is  the 
natural  and  legitimate  result  of  the  intoxication 
it  is  of  course  covered  by  the  words  of  the  statute. 
So,  where  several  drunken  men  got  into  a  fight, 
and  one  was  killed,  an  action  was  successfully 
brought  against  the  liquor  seller.'  But  in  Ohio  it 
has  been  held  that,  under  the  act  in  force  there, 
damages  arising  from  the  death  of  the  intoxicated 
person  cannot  be  recovered.  The  court  followed 
the  old  common-law  rule,  and  considered  that  the 
uncertainty,  if  not  impossibility,  of  estimating  the 
value  of  human  life,  or,  in  other  words,  the  pecu- 
niary injury  arising  from  its  destruction,  un- 
doubtedly was  the  reason  why  the  common  law 
gave  no  remedy.  Boynton,  J.,  uttered  a  strongly 
dissenting  opinion." 

Not  onlv  can  damages  coextensive  with  the 
injury  suffered  be  recovered,  but  also  exemplary 
damages.  Exemplary  damages,  however,  cannot 
be  obtained  unless  there  is  proof  of  actual  injury 
to  the  person  or  property  or  means  of  support."  If 
a  wife  show  that  she  has  sustained  injury  to  her 


it 


'  Jacksou  V.  Brookins,  5  Hun,  533. 

8  Davis  V.  Justice,  31  Ohio  St.  359. 

"Gaussley  v.  Perkins,  ;.0  Mich.  495  ;  Wightman  v.  De- 
vere,  33  Wis.  570;  Keedy  v.  Howe,  79  111.  133;  Gilmorev. 
Mathews,  67  Me  517. 


l! 


Civil  Remedy. 


199 


means  of  support  she  may  get  exemplary  damages 
even  though  she  fail  to  prove  any  aggravating 
circumstances  on  the  part  of  the  tavern-keeper, 
such  as  his  furnishing  the  husband  with  liquor 
after  being  forbidden  so  to  do,  or  his  tempting  or 
inducing  him  to  drink ;  ^  but,  as  a  rule,  she  will 
have  to  show  some  aggravating  circumstances." 
Selling  on  Sunday,  or  without  a  license,  will  not 
be  sufficient  to  fix  one  with  exemplary  damages.' 
Where  the  seller  of  the  cup  '  with  beaded  bub- 
bles winking  at  the  brim '  has  been  notified  not 
to  sell  a  particular  person,  or  where  he  has  placed 
temptations  in  the  way  of  one  to  seduce  him  from 
the  paths  of  sobriety,  or  where  one  who  has  al- 
ready fallen  low  through  the  baneful  effects  of 
strong  drink  is  endeavoring  to  reform  and  free 
himself  from  the  cursed  chains  which  bind  him ; 
if  the  dram-seller  supplies  drink  to  such  a  one,  it 
is  fit  and  proper  to  make  him  smart  in  exemplary 
damages.* 

Mental  suffering  and  anguish  do  not  of  them- 
selves constitute  a  ground  of  action,  yet  where 
actual  injury  has  been  proved  they  may  be  con- 
sidered in  weighing  the  question  of  exemplary 
damages.*     A  wife  may  show  that  she  has  been 

»  Hackett  v.  Smelsley,  77  111.  109. 

» Brantigam  v.  While,  73  111.  561 ;  Franklin  v.  Scliermer- 
horn,  15  N.  Y.  Sup.  Ct.  113. 
«  Albrecht  v.  Walker,  73  111.  69. 
*  Kellerman  v.  Arnold,  74  111.  G33. 
»  Freese  v.  Tripp,  70  111.  490 ;  Rotli  v.  Eppy,  80  id.  283. 


' ! 

V  \ 


200 


Civil  Remedy. 


excluded  from  society  on  account  of  lier  hus- 
band's intoxication,  and  may  give  evidence  of 
lier  meiital  sufferings  generally  arising  fi'om  his 
habits.'  Any  violent  interference  with  one's 
person  is  in  law  an  injury,  and  mental  suffering 
resulting  therefrom  is  a  ground  for  damages." 
In  consequence  of  being  intoxicated  by  liquor 
sold  him  by  the  defendant  a  husband  received 
certain  injuries ;  the  court,  in  Wisconsin,  held 
that  the  wife  was  entitled  to  recover  compensa- 
tion for  her  trouble  in  watching,  nursing  and 
taking  care  of  him  during  his  indisposition,  dam- 
ages for  injuries  to  her  own  health  in  conse- 
quence of  her  attendance  upon  him,  expenses  of 
medical  assistance  and  the  cost  of  paying  another 
for  looking  after  his  business."  In  Illinois,  where 
the  plaintiff's  husband  became  a  confirmed  drunk- 
ard, gave  up  his  business  at  which  he  was  earn- 
ing five  dollars  a  day,  and  squandered  a  valuable 
property,  a  verdict  of  $10,000  actual  and  $2,000 
exemplary  damages  was  considered  not  excessive.* 
In  Michigan,  it  has  been  held  that  the  actual 
damages  awarded  should  be  as  nearly  commen- 
surate with  the  actual  injury  as  the  nature  of  the 
case  will  permit ;  and  exemplary  damages  should 
be  given  in  those  cases  alone  where  t)  e  I'laintiff 

»  Friend  v.  Dunks,  37  Mich.  25. 

2  Ward  V.  Tliompson,  48  Iowa.  588. 

3  Wigbtman  v.  Devere,  33  Wis.  570. 

*  Jewett  V.  Wanshura,  8  Chi.  L.  N.  324;  43  Iowa,  574. 


Civil  Kemkdy. 


201 


has  some  personal  right  to  eompLiiii  of  a  wanton 
and  wilful  wrong,  wliich  the  wrong-doer,  when 
he  committed  it,  must  be  regarded  as  having 
committed  against  the  plaintiff  in  spite  of  the  in- 
jury he  must  have  known  the  plaintiff  was  likely 
to  suffer  by  it.  And  in  Xew  York  it  was  decided 
that  exemplary  damages  should  be  given  only 
where  there  are  circumstances  of  abuse  or  aggra- 
vation on  the  part  of  the  seller  of  the  liquor.* 

The  courts  in  Indiana  have  put  a  narrow  con- 
struction upon  the  statute  and  aj)pear  to  hold 
that  the  liquor-seller  is  not  responsible  for  all  the 
consequences  arising  from  the  sale  of  intoxicating 
liquors,  but  only  for  such  as  he  may  be  presumed 
to  have  forep.een  as  likely  to  be  the  result  of  his 
selling ;  that  he  is  not  liable  for  an  extraordinary 
and  fortuitous  event,  not  naturally  resulting  from 
intoxication  ;  nor  for  an  effect  which  is  not  natur- 
ally, necessarily,  nor  even  pi-obably  connected 
with  the  selling;  that  the  event  need  not  indeed 
take  place  immediately  or  directly  upon  the 
cause,  but  it  must  be  effected  by  a  chain  of 
natural  effects  and  causes  unchanged  by  human 
action,  or  the  party  who  sold  the  liquor  w'ill  not 
be  responsible.  So  wheie  a  drunken  man  lay 
down  in  a  v;agon  on  his  way  home  and  a  barrel 
rolled  over  him  and  hurt  him  so  that  he  died ; 


'  Gaussley  v.  Perkins,  30  Mich.  ^92  ;  Franklin  v.   Scher- 
merhorn,  8  Hun,  112. 


i 


aim 


K 


202 


Civil  Remedy. 


and  where  another  intoxicated  fellow  wandered 
on  to  a  railway  track  and  was  run  over ;  it  was 
held  that  the  wife  could  not  recover  in  either 
case.  And  the  court  said,  in  the  former  case, 
that  the  result  would  be  the  same  if  a  drunken 
man  lay  down  under  a  tree  and  a  branch  blew 
down,  or  lightning  struck  the  tree,  and  killed 
him.'  These  two  decisions  have  been  severely 
criticised ;  and  it  has  been  remarked  that  while 
the  former  is  possibly  supportable  on  the  reason- 
ing of  the  court,  the  latter  is  entirely  unsupport- 
able;  that  while  it  is  not  reasonably  within 
human  foresight  that  a  drunken  man  will  lie 
down  in  a  wagon  and  there  be  killed  by  a  bar- 
rel rolling  on  him,  or  lie  down  under  a  tree  and 
there  be  killed  by  falling  limb  or  thimderbolt 
(as  there  is  nothing  dangerous  in  these  acts,  or 
they  might  equally  well  happen  to  a  sober  man), 
yet  it  is  easy  to  foresee  that  a  drunken  man 
might  cross  a  track,  and  while  so  doing,  in  conse- 
quence of  his  carelessness,  be  killed." 

Indiana  appears  to  stand  almost  alone  in  this 
view  of  the  matter.'  In  Illinois  it  has  been  held 
that  if,  in  consequence  of  abusive  language  used 
by  a  drunken  man,  he  is  assaulted  and  killed ;  or, 

'  Erack  v.  Heilman,  53  Ind.  517  ;  Collier  v.  Early,  54  id. 
559. 
» 18  Alb.  Law  Jour.  424. 
>  Roth  V.  Eppy,  80  111.  283. 


Civil  Remedy. 


203 


if  the  death  of  a  man  who  receives  a  wound 
while  intoxicated  can  be  traced  as  the  natural 
and  probable  result  of  a  new  and  intervenin<jf 
cause,  such  as  a  felonious  attack  in  which  the 
wound  is  received,  or  a  reckless  exposure  or  ampu- 
tation when  unnecessary ;  in  no  such  case  will  the 
liquor  seller  be  responsible  for  the  death.^  The 
defendant  is  considered  liable  only  for  such  con- 
sequences as  might  reasonably  have  been  fore- 
seen or  expected.  If  A.'s  bar-keeper  sells  liquor 
to  B.,  and  a  squabble  arising  the  bar-tender  throws 
a  glass  at  B.,  which  misses  him  and  hits  C.  and 
injures  him,  this  hurt  is  not  the  proximate  con- 
sequence of  A.'s  act  in  selling  liquor."  It  has, 
however,  been  held  that  where  a  man  was 
wounded  by  the  discharge  of  a  pistol  flourished 
by  a  drunken  man  in  a  train,  an  action  lay 
against  the  liquor-seller  for  the  damage  done ; 
and  the  fact  that  there  was  time  between  the 
drinking  and  the  accident  to  get  sober  was  con- 
sidered not  to  affect  the  case  if,  in  truth,  the 
drinker  had  not  recovered  his  senses."  And  in  a 
recent  case  in  the  Superior  Court  of  the  State,  it 
was  held  that,  where  the  plaintiff's  husband  was 
killed  upon  a  track,  by  a  passing  railway  train, 
while  in  a  state  of  inebriation,  the  intoxication 

'  Shugart  v.  Egan,  83  111.  56 ,  Schmidt  v.  Mitchell,  84 
III.  195. 
«  Lucken  v.  People,  3  111.  App    375. 
»  King  V.  Haley,  86  111.  106. 


Miy 


^ 


ii 


II 


204 


Civil  Rp:medv. 


was  the  proximate  cause  of  the  death,  and  that 
the  owner  of  tlie  premises  wliere  the  liquor  had 
been  procured  was  Hable  in  damages,  notwith- 
standing the  wagon  and  barrel  case '  and  the 
other  Indiana  case. 

Relationship  alone  does  not  give  a  right  of 
action."  A  liusband  or  wife,  and  each  and  every 
of  their  children  —  though  their  name  be  legion 
—  and  all  other  persons  mentioned  in  the  acts 
may  each  and  every  bring  actions. ' 

Torts  are  divisible ;  so  a  defendant  may.  be  lia- 
ble, even  though  he  has  not  caused  the  intoxication 
in  whole.*  The  time  within  which  the  action  must 
be  brought  runs  from  the  date  of  the  sale  of  the 
liquor,  not  from  the  time  the  injury  happened.* 

The  death  of  the  husband  does  not  put  an  end 
to  the  wife's  right  of  action.' 

What  constitutes  intoxication  is  a  question  of 
fact  to  be  determined  by  the  jury  upon  the  whole 
evidence  in  the  light  of  their  own  observation.' 
It  would  appear  as  if  the  ordinary  rules  of  evi- 
dence were  not  strictly  followed  in  these  cases.' 

*  Sliroeder  v.  Crawford.  94  111.  357. 
«  Gaussly  v.  Perkins,  30  Mich.  495. 

8  Franklin  v.  Schermerhorn.  8  Hun,  113. 

*  Roth  V.  Eppy,  80  111.  283. 

»  Emmett  v.  Grill,  39  Iowa,  690. 

*  Hackett  v.  Smelsley,  77  111.  109. 
»  Roth  V.  Eppy,  80  111.  203. 

8  Dunlavey  v.  ^^^atson,  38  Iowa,  400 ;  Quenerech  v.  Smith, 
84  id.  348;  Kniffen  v.  McConnell,  30  N.  Y.  285;  Hall  v. 
Barnes.  82  111.  328. 


1 


Civil  Rkmedy, 


205 


Tliu  injury  to  the  support  of  a  wife  caused  by 
the  sale  of  intoxicatin<^  liquors  to  her  husbaucl, 
by  which  he  acquires  habits  of  intemperance  and 
idleness,  may  vary  greatly  according  to  the  age, 
condition  and  circumstances  of  herself  and  fainilv. 
Evidence  of  the  previous  sobriety  and  industrious 
habits  of  the  man,  and  his  subsequent  idleness 
and  extravagance,  is  admissible  ;  and  the  jury 
may  be  instructed  to  consider  all  these  circum- 
stances.' A  wife  may  also  prove  the  number  and 
ages  of  her  children  if  she  further  show  that  the 
liquor-seller  had  knowledge  that  she  had  such 
children,  and  that  they  were  in  danger  of  being  in- 
jured or  compelled  to  leave  home,  and  the  de- 
fendant, after  such  knowledge,  wantonly  contin- 
ued to  sell  the  husband  liquor,  by  reason  of  which 
she  acquires  a  right  of  action.  This  evidence  is 
pertinent  to  the  question  of  exemplary,  but  not 
actual,  damages." 

The  court  should  not  charge,  as  a  matter  of  law, 
that  to  sell  liquor  to  an  habitual  drunkard  and 
one  diseased  in  body  and  mind  — through  strong 
drink  —  is  worse  than  selling  it  to  one  who  has  not 
surdc  so  deeply  into  this  sin  and  wretchedness. 
This  is  for  the  jury  to  say.^ 

Evidence  can  be  given  to  show  that  the  drunk- 


'  Dunlavey  v.  Watson,  supra  ;  Friend  v.  Dunks,  37  Mich. 


25. 


•  Ward  V.  Thompson,  48  Towa,  588. 
»  Ludwig  V.  Sager.  84  111.  99. 


200 


Civil  Rkmkdy. 


til 


ard  was  in  the  Imbit  of  visiting  saloons  other  tlian 
tliat  of  tlie  defendant ;  *  and  that  the  wife  has 
been  in  the  liabit  of  buying  liquors  and  drinking 
them  with  her  spouse,  is  admissible  in  evidence, 
if  she  is  asking  for  any  damages  to  her  wounded 
feelings."  If  a  wife  knows  that  her  husband  has 
purchased  a  jug  of  whisky  and  is  drinking  im- 
moderately, and  she  has  it  in  her  power  to  pre- 
vent him  drinking  so  as  to  injure  himself,  by 
breaking  the  jar  or  pouring  out  the  contents ; 
and  she,  not  being  deterred  from  so  doing  by  fear, 
yet  stands  idly  by  and  lets  her  husband  drink  to 
excess,  so  that  death  ensues,  she  will  be  deemed 
a  willing  party  to  his  conduct,  and  instrumental 
in  bringing  the  loss  of  her  good  man  upon  her- 
self.' 

A  wife  will  rid  herself  of  blame  if  she  show 
that  she  was  compelled  by  her  lord  and  master  to 
go  to  saloons  with  him  and  drink  with  him,*  or  that 
she  purchased  the  liquor  that  he  craved  after  for 
liim  under  compulsion,  or  to  keep  him  at  home 
and  away  from  places  where  he  would  be  likely 
to  drink  more.' 

The  fact  that  a  wife  has  upon  other  occasions 
authorized  thie  selling  of  liquor  to  her  husband 

•  Hemmens  v.  Bentley,  88  Mich.  89. 
'Kearney  v   Fitzgerald,  43  l6wa,  580. 
•Reget  V.  Bell,  77  111.  593. 
•*  Jewett  V.  Wanshara,  43  Iowa,  574. 
»  Ward  V.  Thompson,  48  Iowa,  588. 


I! 


Civil  Rkmedy. 


201 


will  not  prevent  lier  recovering  for  the  ill  effects 
of  a  particular  sale  to  which  she  (lid  not  assent ; 
andhergivinghitn  ■  oney  to  enable  him  to  satisfy 
his  appetite  for  strong  drink  does  not  pi'ove  that 
she  contributed  to  his  intoxication,  unless  it  is 
shown  that  the  liquor  which  made  him  drunk 
was  that  purchased  by  means  of  her  money.' 

If  proceedings  are  taken  under  the  section  of 
the  act  allowing  the  recovery  of  compensation 
for  taking  care  of  a  person  while  intoxicated,  the 
defendant  may  show  that  the  drunkard  had  re- 
covered from  the  effects  of  the  liquor  sold  by 
him,  and  that  the  drunkenness  during  which  he 
was  cared  for  was  caused  by  liquor  sold  by 
others.' 

Where  proceedings  are  taken  under  those  acts 
which  give  a  remedy  only  in  case  of  a  sale  or  gift 
in  violation  of  their  provisions,  being  of  a  quasi 
criminal  nature,  the  proof  must  be  strict.  When, 
for  instance,  the  action  is  for  furnishing  liquor  to 
an  habitual  drunkard,  it  must  be  shown  that  the 
defendant  knew  him  to  be  such,  although  it  need 
not  be  proved  that  he  was  intoxicated  at  the 
time.'*  Knowledge  of  the  intemperate  habits  of 
another  may  be  proved  by  reputation.* 

•Rafferty  v.  Buckman,  46  Iowa,  195. 
»  Braman  v.  Adams,  76  111  331. 

SMarkert  v.  HofFner,  4  Am.  L.  Rec.  Ill;    Fountain  v 
Draper,  49  Ind.  441. 
*  Wickwire  v.  State,  19  Conn   477. 


lUl; 


111! 


■)  ■ 


208 


Civil  Remkdv. 


As  it  is  the  object  of  these  statutes  to  furnish 
redress  and  compensation  to  innocent  snfferers 
from  the  consequences  of  the  sale  of  intoxicating 
liquors,  if  one,  by  his  own  acts  and  conduct,  vol 
untarily  and  kno\vin<j^ly  encourages  another  to 
drink,  he  cannot  complain  of  any  wrong  which 
he  may  suffer  at  the  hands  of  one  who  is  in  a 
state  of  iiitoxication  which  he  himself  lias  assisted 
to  produce,'  An  hotel-keeper  cannot  recover 
from  a  drunken  man  for  a  trespass  committed 
when  under  the  influence  of  liquor  sold  by  him- 
self." These  laws  are  not  intended  as  means  of 
speculation,  but  as  a  protection  to  the  wife  and 
family  of  the  drunkard.^ 

In  the  Provinces  of  Ontario  and  Quebec,  if  a 
person  while  intoxicated  assaults  another,  or  in- 
jures any  property,  the  person  who  furnished  him 
with  the  liquor  which  occasioned  the  intoxication 
—  if  in  violation  of  the  law  —  is  jointly  and  sev- 
erally liable  to  the  same  action  by  the  party  in- 
jured as  that  to  which  the  drunken  man  may  be 
liable.* 

'  Kearney  V     Fitzgerald,    43    Iowa,   580,    Engleken  v. 
Hilger,  id.  063. 

*"  Aldrich  v.  Harvey,  50  Coun.  103. 

^Confrey  v  Stark,  73  111.  187. 

< 27  &  38  Vict.,  ch.  18,  §  01 ;  Rev.  St.  Ont.,  ch.  181,  §  89. 


f 


Statute  Law. 


209 


CHAPTER  XV. 
STATUTE  LAW. 


In  tliis  conclnding  chapter  the  legislation  of 
recent  years  in  Sweden,  Great  Britain,  and 
America  will  be  briefly  referred  to.  Any  thino* 
like  an  extended  notice  of  the  statutes  and  de- 
crees of  the  legislatures  and  governments  of  civ- 
ilized nations  during  even  the  last  twenty-live 
years  would  swell  this  book  beyond  its  prescribed 
limits. 

During  the  first  half  of  the  present  century 
the  Swedes  are  considered,  by  some,  to  have  been 
the  most  drunken  people  on  the  face  of  the  eartli. 
Alison  says,  that  about  1828  the  amount  of  crime 
in  Sweden  was  equal  to  that  of  the  most  depraved 
cities  of  Great  Eritain,  and  illegitimate  births  in 
Stockholm  exceeded  the  proportion  of  Paris  itself ; 
and  all  this  the  historian  attributes  to  the  de- 
structive passion  for  ardent  spirits.*  Every  httle 
landholder,  who  was  prepared  to  pay  a  small  fee 
for  a  license,  was  allowed  to  distil  Intoxicating 
liquors ;  in  truth  the  whole  country  mi\y  be  said 
to  have  been  deluged  with  spirits.    "  There  were 

'  Alison's  History  of  Europe,  vol,  nv,  p.  101. 
14 


mi 


¥i 


210 


Statute  Law. 


M 


I' 


■Ii 


li; 


i.H! 


I!!' 


ft 


150  mannfactories  of  liquid  liell  fire,"  distilling 
annually  tliirty  millions  of  gallons  for  the  con- 
sumption of  three  millions  of  people  ;  this  was  in 
1835.  A  temperance  movement  was  started  in 
Sweden  about  that  time  ;  and  at  length  in  1853 
a  bill  was  introduced  into  the  diet  which  effected 
a  complete  reform  in  the  licensing  system,  and 
which  has  wrought  wonders  in  the  habits  of  the 
people.  The  distinctive  features  of  the  system  are 
that  no  individual,  either  as  proprietor  or  mana- 
ger of  a  public  house  or  shop,  can  derive  any 
private  gain  from  the  sale  of  spirits,  or  have 
any  interest  in  extending  their  consumption; 
and  that  licenses  are  sold  by  auction  for  a  term 
not  exceeding  three  years,  to  persons  who  under- 
take to  pay  certain  duties  annually  to  the  local 
authorities ;  or,  if  a  company  is  formed  for  taking 
the  whole  number  of  public-house  licenses,  the 
town  authorities  may  contract  with  such  company 
for  three  years  without  an  aufction,  subject  to  the 
confirmation  of  the  governor  of  the  province. 
Under  this  law  the  Gothenburg  "Bolag"  or 
company,  was  started ;  this  consists  of  a  number 
of  persons  who  buy  up  the  licenses  for  the  sole 
object  of  diminishing  intoxication,  and  pay  over 
the  profits  they  make  on  the  sale  of  drink  to  the 
town  and  provincial  treasuries  in  reduction  of  the 
taxes ;  they  sublet  to  clubs  and  hotels.^    In  1865 


'  Fortnightly  Review,  May,  1876. 


i 


Statute  Law. 


211 


when  they  began  there  were  119  licensed  public 
houses"  and  places  for  retailing  spirits,  by  1875 
they  had  reduced  these  to  54;  although  there 
were  115  places  for  the  sale  of  beer  and  porter 
not  under  the  Bolag  still,  in  ten  years,  the 
drunkenness  was  reduced  40  per  cent  and  the 
profits  in  1875  were  about  £37,000.  The  sys- 
tem is  likely  to  spread  throughout  the  whole 
country.  A  permissive  bill  is,  also,  in  operation 
in  Sweden,  under  which  the  local  authorities  may, 
with  the  sanction  of  the  government,  prohibit  the 
trade  in  ardent  spirits  altogether.' 

In  England  there  are  some  thirty  statutes  in 
force,  extending  from  the  twelfth  year  4  Charles 
the  Second's  reign  to  the  forty-fourth  of  Victoria's, 
regulating  (or,  rather,  endeavoring  to  regulate) 
the  wholesale  and  retail  trade  in  intoxicating 
liquors.  Much  of  the  annual  revenue  is  derived 
from  the  traffic  in  beer  and  spirits,  and,  per  con 
tray  a  very  large  proportion  of  the  revenue  is  ab- 
sorbed in  endeavors  to  nullify  the  ill  effects  of  the 
use  of  intoxicants  and  in  protecting  the  com- 
munity against  those  who  use  them  to  excess. 

The  licenses  granted  are  of  several  different 
kinds,  from  those  merely  permitting  the  sale  of 
cider  to  those  allowing  the  vending  of  intoxicants 
of  all  sorts.  They  vary,  of  course,  in  their 
prices.     The  value,  too,  of  the  premises  in  which 

'  Samuelson,  History  of  Drink,  chap.  13. 


212 


Statute  Law. 


I 


Vi:U 


m 


ii 


the  business  is  carried  on  is  considered  in  fixing 
the  duty  to  be  paid  —  a  gin-pahice  being  taxed  at 
a  far  higher  rate  than  a  small  tavern.  Sales,  or 
attempted  sales,  by  retail,  without  licenses,  or  in 
places  unauthorized  by  the  license,  are  prohibited 
and  punishable  by  fine,  imprisonment  or  cancella- 
tion of  the  license;  the  penalty  increasing  at 
each  repetition  of  the  offense.  The  court  may 
confiscate  all  liquors  found  upon  the  premises  of 
one  selling  illegally,  and  may  issue  a  warrant  to 
search  for  such  things.  All  the  occupiers  of  un- 
licensed premises  are  liable  to  the  foregoing  pen- 
alties, if  the  illegal  sales  have  been  made  with 
their  privity  or  consent.  The  holder  of  a  license 
to  sell  intoxicants,  to  be  drunk  on  the  premises, 
incurs  a  penalty  if  he  sells  any  spirits  to  a  person 
apparently  not  sixteen  years  old. 

The  hours  for  closing  taverns  and  saloons  vary 
in  different  parts  of  the  country ;  greater  oppor- 
tunities being  given  for  drinking  in  the  metropo- 
lis, and  also  in  populous  places,  than  in  rural 
districts.  In  the  metropolitan  district  they  must 
be  closed  from  midnight  on  Saturday  until  one  in 
the  afternoon  on  Sunday ;  from  three  until  six 
on  that  afternoon,  and  then  from  eleven  at  night 
to  five  on  Monday  morning ;  on  other  days  they 
have  to  be  closed  from  half  an  hour  past  mid- 
night until  five  in  the  morning.  In  other  cities, 
towns  and  populous  places  the  publican  must 
shut  up  an  hour  and  a  half  earlier  on  Saturday 


Statute  Law. 


213 


night,  but  may  open  half  an  hour  earlier  on  Sun- 
day ;  then  he  has  to  close  from  half-past  two  until 
feix ;  and  at  ten  he  must  r-hut  np  for  the  night. 
On  other  nights  he  must  be  closed  from  eleven 
until  six.     In  country  parts  these  places  must  be 
closed  an  honr  earlier  at  night  than  in  the  towns, 
except  on  Sunday ;  they,  too,  must  observe  the 
afternoon  of  the  Sabbath  day  to  keep  it  holy. 
Christmas  and  Good  Friday  are  treated  as  Sun- 
days.    Unfortunately  the  local  authorities  have 
power  in  many  cases  to  grant  exemptions  as  to 
these  closing  houio.     If  a  man  has  qualms  of  con- 
science, or  is  lazy,  or  has  any  other  reason,  he 
may  take  out  an  '  early-closing  license,'  or  'a  six- 
days'  license; '  under  the  former  he  must  shut  up 
an  hour  sooner  than  his  neighbors;  under  the 
latter  he  must  rest  on  the  seventh  day.     He  gets 
his  license  cheaper,  however ;  but  if  caught  act- 
ing contrary  to  its  terms  he  is  severely  fined. 
Bond  fide  travelers  may  be  served  at  any  hour, 
at  any  place  where  the  proprietor  is  licensed  to 
sell  intoxicants  to  be  consumed  on  the  premises ; 
unless,  indeed,  he  be  a  six-days'  man,  and  it  is  a 
Sunday  ;  the  courts  are  very  kind  toward  thirsty 
souls,  when  considering  who  are  travelers. 

To  be  intoxicated  in  any  public  place,  or  on 
any  licensed  premises,  renders  one  liable  to  a  fine 
of  ten  shillings ;  if  caught  a  second  time  within 
twelve  months  the  offender  may  be  mulcted  in 
twenty  shillings;  and  if  a  third  time,  in  double 


"  t 


m 


214 


Statute  Law. 


that  sum.  Any  one  drunk  or  disorderly  in  a 
public  place,  or  drunk  while  in  charge  in  any 
public  place,  of  a  carriage,  horse,  cattle  or  steani- 
engine,  or  when  he  has  loaded  fire-arms  in  his 
possession,  may  be  apprehended  and  fined,  but  not 
more  than  forty  shillings;  or  he  may  be  sent  to 
prison  for  not  more  than  a  month.  If  the  holder 
of  a  license  allows  drunkenness,  or  violent,  quar- 
relsome or  riotous  conduct  on  his  premises,  or 
sells  to  an  intoxicated  person,  or  keeps  a  dis- 
orderly or  immoral  house,  or  harbors  a  constable 
on  duty,  or  permits  gaming  in  his  house,  he  is 
guilty  of  an  offense  and  may  be  heavily  fined. 
Any  licensed  person  may  request  a  drunken,  vio- 
lent or  disorderly  man  to  leave,  and,  if  such  indi- 
vidual does  not  go  when  asked,  he  is  liable  to  a 
penalty  of  <£5-,  and  may  be  bundled  out  by  a  con- 
stable.* 

There  is  a  great  deal  of  legislation  both  in  Scot- 
land and  Ireland  on  these  subjects,  and  many  of 
the  provisions  of  the  Scotch  and  Irish  acts  are 
vei"  .  Jar  to  those  in  force  in  England.  In 
In  !;>.;,  e'j:v?ept  in  Dublin,  Cork,  Limerick,  Water- 
ford  iuid  Belfast,  the  taverns  are  altogether  closed 
on  Sundays ; '  and  most  beneficial  effects  have 
flowed  from  this  law. 


'  35  &  36  Vict ,  ch.  94;  37  &  88  id.,  cl».  49  ,  43  &  44  id  ch. 


20. 


»  41  and  42  Vict  ,  cii.  72. 


f  1l 


Statute  Law. 


215 


Notwithstanding  all  the  efforts  of  the  legisla- 
tors and  the  labors  of  philanthropists,  the  evils 
of  intemperance  in  the  United  Kingdom  and  Ire- 
land are  enormous.     Men,  women  and   children 
put  enemies  into  their  months  to  steal  away  their 
brains ;  they  with  joy,  pleasance,  revel  and  ap- 
plause, transform  themselves  into  beasts.     They 
drink  and  speak  parrot,  and  squabble,  swagger, 
swear  and  discourse  fustian  with  their  own  shad- 
ows, through  use  of  strongest  wines  and  strong- 
est drinks.     Thousands  and  tens  of  thousands  are 
the  drunkards  who  forfeit  man  and  do  divest  all 
worldly  right   save   what  they  have  by  beast. 
Mr.  Justice  Geove  once  said,  "Men  go  itito  pub- 
lie  houses  respectable  and  respected,  and  come 
out  felons."     Justice  Lusn  lately,  at  the  Bristol 
Assizes,  gav6  it  as  his  impression,  derived  from 
constant  experience  in  every  county  in  England, 
that  more  than  half  —  he  thought  he  might  say 
considerably   more   than  half  —  of    the   crimes 
brought  before  the  courts  were  to  be  ascribed 
directly  or  indirectly  to  the  influence  of  drink. 
Mr.  Justice  Hawkins  ^  did  not  hesitate  to  affirm 
that  the  great  majority  of  the  crimes  that  had 
come  before  him  were  traceable  to  these  'hot  and 
rebellious  liquors.'     An  Irish  judge'  said  that 
the  crying  and  besetting  crime  of  intemperance 

'  Charge  to  Grand  Jury,  Bedfordshire  Assizes,  1878. 
'  Charge  at  Dublin  Assizes,  1878. 


iij 


lit! 


m 


B    Id 

I 


216 


Statute  Law. 


was  a  crime  leading  to  nearly  all  other  crimes  — 
a  crime  that  they  might  very  well  say  led  to  nine- 
teen-twentieths  of  the  crimes  in  Ireland.  While 
Mr.  Justice  Manisty,  at  the  Manchester  Assizes 
in  1S77;  truly  remarked  that  drunkenness  would 
have  to  be  treated  as  a  far  more  serious  crime  in 
itself  than  it  hitherto  has  been. 

Canon  Farrar,  in  burning  words,  thus  addresses 
the  people  of  England  on  the  liquor  tratHc : 
"  Weigh  the  gain  and  the  loss ;  strike  the  bal- 
ance. On  the  one  scale  place  whole  tons  of  in- 
toxicating and  adulterated  liquor,  put  alcohol ; 
on  the  other  side  put  £150,000,000  *  a  3'ear,  and 
grain  enough  to  feed  a  nation,  and  grapes  that 
might  have  been  the  innocent  delights  of  mil- 
lions ;  and  load  the  scale,  and  you  must,  if  you 
would  be  fair,  load  it  with  disease,  and  pauperism, 
and  madness,  and  horrors  such  as  no  heart  c^u 
conceive  and  no  tongue  tell ;  and  wet  it  with  riv- 
ers of  widows'  and  orphans'  tears,  and  if  you  will 
not  strike  the  balance  God  will  one  day  strike  it 
for  you." 

In  the  Dominion  of  Canada,  nnder  the  Tem- 
perance Act  of  1878,  any  county  or  city  may 
petition  the  secrfttary  of  State,  and  have  a  vote^oT 
th^jelectjors_tak  adopting 

thatmrt  of  the  ar  c  which  prohibits  the  trafficjn 
intoxicating  liquor.     If  on  a  poll  being  taken  the 

>  John  Bull's  liquor  bill  fell  off  some  £30,000,000  in  1880. 


\     ^ 


w 


;?  !■• 


Statute  Law, 


217 


majority  are  in  favor  of  the  adoption,  then  from 
the  time  named  and  until  the  vote  has  been  re- 
pealedj  no  person  (unless  for  exclusively  saera- 
mentiiLor  medicinal  pui-pQseg._QiL  for  lond  Jde^ 
use,  in  &Qmfi_jylj__trade_jor^juianufacture,)  can  ex- 
pose  or  keep  foi[^ile^r_djrectly  or  indirectly,  on 
any  pj-eteiiseorjlevTce,  SblT  or  barter,  oi-TiTcoiP" 
sideration  of_tlie  purchase  of  airv^ther~property 
gTvyto^  ajix_4)eraoii  any  .spiritiions  oroilier  in.- 
toxicatin^^  li(]^iior^j)r  any  mived  J^upjnr  r^ajMhl^  of 

being  used  as  a  beverafji-e.  and  part  of  which  is 
spTrTfuous  or  otherwise  intoxicating.  A  limited 
number  of  persons  may,  however,  be  specially 
licensed  by  the  lieutenant-governor  of  the  prov- 
ince, who,  on  proper  certificate,  from  ministers, 
physicians  or  magistrates,  may  sell  wine,  etc., 
for  sacramental,  medicinal  or  mechanical  pur- 
poses respectively.  Manufacturers  and  whole- 
sale merchants  may  even  under  this  act  sell  whole- 
sale to  these  licensed  persons.  The  punishment 
for  unlawful  selling  is  fine  and  imprisonment.' 

Under,  the  Election  Act,  during  the  whole  of 
the  polling  day  at  any  election  for  the  House  of 
Commons  all  taverns  must  be  closed,  and  no 
spirituous,  fermented  or  strong  drink  sold  or 
given  away  at  any  hotel  or  other  place  within 
the  district,  under   penalty  of  a  fine  of   $100, 


U 


11  V\ 


V 


>m\ 

ii 


iii 


'  41  Vict.,  ch.  16. 


218 


Statute  Law. 


and,  if  that  is  not  paid,  imprisonment  for  not 
more  than  six  months.* 

Besides  these  Federal  acts  the  various  provinces 
liave  license  laws  regulating  the  liquor  traffic. 
In  Ontario,"  all  places  where  intoxicating  liquors 
are  sold  must  be  closed  from  seven  o'clock  on 
Saturday  evening  until  six  on  Monday  morning ; 
also  on  all  election  days.  Any  innkeeper  or 
saloon-keeper,  or  person  in  his  employ,  who 
furnishes  liquor  to  a  person  who  while  intoxicated 
fro.m  such  liquor  commits  suicide,  or  perishes  by 
cold  or  accident,  is  liable  to  the  personal  repre- 
sentatives of  such  person  to  an  amount  not  ex- 
ceeding $1,000,  and  it  is  not  necessary  for  the 
claimant  to  show  actual  damage.  The  husband, 
wife,  parent,  brother,  sister,  guardian,  or  em- 
ployer, of  any  person  in  the  habit  of  drinking  to 
excess,  may  notify  sellers  of  liquor  not  to  furnish 
such  person  with  drink ;  and  if  the  parties  noti- 
fied neglect  the  notice  they  are  liable  to  the  party 
giving  the  notice  in  an  action  for  personal  wrong 
to  an  amount  not  exceeding  $500.  Money  paid 
for  liquor  sold  contrary  to  law  may  be  recovered 
back;  and  securities  given  for  payment  of  in- 
toxicating drinks  sold  in  violation  of  law  are 
wholly  null  and  void,  except  in  the  hands  of 
hond  fide  assignees  for  value  without  notice. 
Some   of  the  licenses  may  be   only  beer   and 

'  37  Vict.,  ch.  9  (Dom.  of  Can.). 
»  R.  S.  Ont.,  ch.  181. 


Statute  Law. 


219 


wine  licenses,  authorizing  the  traffic  by  retail  in 
lager  beer,  ale,  beer,  porter  and  native  wines 
made  in  Ontario  from  Ontario  vines,  and  con- 
taining not  more  than  fifteen  per  cent  of  alcohol.^ 
Under  the  Temperance  Act  of  Ontario'  the  coun- 
cil of  any  municipality  may  pass  a  by-law 
for  prohibiting  the  sale  of  intoxicating  liquors, 
and  the  issue  of  licenses  therefor ;  or  thirty  elect- 
ors may  propose  such  a  by-law  and  demand  a 
poll  to  determine  whether  it  shall  be  adopted. 
If  such  a  by-law  be  passed  no  one,  except  for 
medicinal,  mechanical  or  sacramental  purposes, 
can  sell  or  barter  any  intoxicating  liquor,  or  any 
mixed  liquor  capable  of  being  used  as  a  bever- 
age, or  part  of  which  is  spirituous  or  otherwise 
intoxicating,  within  the  municipality. 

Well  nigh  every  phase  of  legislation  upon  the 
subject  of  intoxicating  liquors  may  be  studied  in 
the  United  States.  Samuelson  says,  that  "  in  no 
people  has  the  transition  from  intemperance  to 
sobriety  been  so  marked  as  in  those  of  the  United 
States;"  and  much  of  the  improvement  is  due 
to  wise  legislation  —  the  rest  to  public  opinion. 
As  early  as  1821,  a  law  was  passed  which  placed 
the  property  of  habitual  drunkards  in  the  liands 
of  a  committee  of  the  Court  of  Chancery,  like 
that  of  lunatics.     For  the  first  half  of  the  century. 


Jit' . 


5  i   ! 


i 

il! 


11 


I 

I 


J  44  Vict.,  chap.  27. 


2  R.  S.,  ch.  183. 


I 


220 


Statute  Law. 


liowevei',  reformers  trusted  cliiefly  to  moral 
suasion  for  curing  the  evils  of  intemperance.  In 
1852  a  proliibitory  liquor  law  was  passed  in  Ver- 
mont, and  from  that  time  to  the  present,  war  has 
been  waged  in  most  of  the  State  Legislatures 
against  the  liquor  traffic.  As  might  be  expected 
the  friends  of  temperance  arid  total  abstinence 
have  not  been  equally  successful  all  along  the 
line ;  in  some  of  the  States  much  drunkenness 
still  exists ;  in  others  "  there  are  places  where  it 
is  almost  impossible  to  obtain  intoxicating  drinks, 
and  where  drunkenness  is  unknown."  In  some 
parts  "  perpendicular  drinking,"  as  Dickens  calls 
*  treating ; '  ^  in  others,  the  slang  names  of  drinks, 
in  which  there  is  really  little  alcohol,  such  as  gin- 
slings,  cocktails,  tangle-legs,  eye-openers,  morning- 
glories;  often  deceive  strangers,  and  make  tilings 
appear  worse  than  they  are. 

Many  years  ago  in  Maine,  tiie  so-called  "  Maine 
Liquor  Law "  was  enacted.  Under  this  statute 
both  the  manufacture  and  sale  of  intoxicating 
liquors  are  forbidden,  except  for  medicinal,  me- 
chanical and  manufacturing  purposes;  and  for 
these  uses  they  can  only  be  obtained  through  the 
municipal  authorities.  Ale,  porter,  strong  beer, 
lager  beer,  and  all  other  malt  liquors,  wine  and 
cider,  as  well  as  all  distilled  spirits,  are  deemed  in- 
toxicating liquors."    Breaches  of  the  law  are  pun- 


'  Samuelson,  ch.  XIV. 


2Rev.  Stat.  ch.  27, 1873. 


StaiLte  Law. 


221 


ished  severely  by  find  antl  imprisoTiment.     Any 
person  injured  in  person,  property,  means  of  sup- 
port or  otherwise,  by  any  intoxicated  person,  or 
by  reason  of  his  intoxication,  has  a  right  ot  action 
against  the   seller.     Quarrelsome  drunkards,  or 
those   disturbing  the  peace  even  of  their  own 
domestic   circle,  may  be  imprisoned   for   thirty 
days.     No  action  can  be  brought  on  any  claim  or 
security   contracted    or  given  for    intoxicating 
liquor,  sold  in   violation  of   the  act,  unless  the 
security  is  in  tlie  hands  of  a  hondjide  holder  for 
value  witiiout  notice.     The  sale  of  intoxicants  to 
any  minor  without   the  written   direction  of  his 
parents,  or   to  any  Indian,  soldier,  drunkard,  in- 
toxicated person,  or  intemperate  person  of  whose 
intemperate  liabits  the  liquor-seller  has  been  noti- 
fied by  parents  or  officials,  is  forbidden.     Judge 
Davis,  of  the  Supreme  Court  of  the  State,  says : 
"  No  man  who  has  lived  in  tlie  State  for  twenty 
years,  and  has  had  an   opportunity  to  know  the 
facts,  can  doubt  that  the  Maine  law  has  produced 
a    hundred    times    more    visible    improvement 
in   the  character,   condition    and   prosperity   of 
the  people  than   any  other  law   that  was  ever 
enacted."  * 

New   Hampshire  has,  also,  a  prohibitory  law, 
under  which  the  traffic  in  alcoholic  liquors  (ex- 

*  The  Maine  Law  Vindicated,  p.  7. 


viU 


I  hi 


i' 


I'll 


!■ 


yli 


222 


Statute  La^v. 


Wi 


! 

H     4 

V  * 


ceptiiig  by  duly-appointed  agents)  is  illegal. 
Neither  the  State  nor  the  municipalities  derive 
any  revenue  from  the  sale  of  intoxicating  drinks 
—  from  the  vices  and  miseries  of  the  people,  as 
the  emperor  of  China  put  it. 

Yermont,  as  has  been  said,  has  had  a  prohibit, 
ory  liquor  law  for  thirty  years,  which  has  been 
amended  from  time  to  time.  It  has,  also,  a  Civil 
Damage  Act.  Under  a  statute  of  1876  every 
saloon,  restaurant,  grocery,  etc.,  and  bar-room  and 
drinking  place  is  held  and  regarded  as  a  com- 
mon nuisance,  kept  in  violation  of  the  law,  and 
the  court  can  order  it  to  be  shut  up.  Drunken 
people  may  be  arrested  and  detained  till  sober, 
and  then  compelled,  under  pain  of  imprisonment, 
to  disclose  where  they  obtained  their  drink. 
Massachusetts  formerly  had  a  prohibitory  law, 
but  in  1875  its  Legislature  ^jassed  a  license  law  to 
regulate  the  sale  of  intoxicants ;  luider  this  no 
spirits  or  intoxicating  liquor  can  be  sold  between 
midnight  and  six  a.  m.,  nor  on  the  Lord's  day, 
except  by  innkeepers  to  their  guest?,  nor  to  a  per- 
son known  to  be  a  drunkard,  nor  to  an  intoxicated 
person,  nor  to  a  minor.  The  licenses  are  of 
various  classes;  those  for  light  drinks  being  much, 
less  expensive  than  those  to  sell  spirits ;  the  money 
goes  to  the  municipality  and  the  State.  Police- 
men '  id  officials  of  the  city  may,  at  any  time, 
enter  ihe  licensed  premises  to  see  how  the  busi- 
ness is  conducted,  and  to  preserve  order.  Yarious 


■H 


Statute  Law. 


223 


stringent  penalties  are  enacted  for  tlie  punishment 
of  breaches  of  the  act.  In  that  Coniinonwealth 
there  is,  also,  an  act  authorizing  the  seizure,  de- 
struction or  sale  of  intoxicating  liquors  exposed 
and  kept  for  sale  contrary  to  law. 

A  statute  forbidding  the  keeping  for  sale,  with- 
out authority,  of  spirits  or  intoxicating  liquors, 
does  not  apply  to  druggists  who  keep  them  only 
to  mix  with  other  ingredients  to  be  used  as  med- 
icines.^ 

Rhode  Island  has  a  license  law  passed  in  1875. 
The  municipal  authorities  grant  the  licenses  to  sell 
as  they  think  proper.  The  sale  is  prohibited  on 
Sundays,  or  to  any  minor  or  person  of  notoriously 
intemperate  habits.  It  was  held,  by  the  Supreme 
Court  of  this  State,  that  a  statute  is  unconstitu- 
tional which  makes  it  the  duty  of  a  jury,  trying 
a  case  of  unlawfully  selling  liquors,  to  convict  the 
accused  upon  simple  proof  of  the  reputation  of 
his  p'ace,  or  of  the  bad  character  of  its  frequent- 
ers, or  of  his  iiaving  the  inq^lements  and  appur- 
tenances of  a  groj]j-shop.'  Connecticut  at  one  time 
had  a  prohibitory  law  ;  now  it  has  gone  back  to  a 
license  law  similar  to  tliat  in  Rhode  Island.  Un- 
der it  it  is  a  misdemeanor,  punishable  by  fine  or 
imprisonment,  to  sell  to  any  minor  any  spirit  or 

»  Com.  V.  Hallet,  103  Mass.  452 :  Com.  v.  Bu  'cnck,  6 
CusU.  247  ;  Com.  v.  Ramsdell.  33  Alb.  L.  J.  414. 
2  State  V.  Beswick,  23  Alb.  L.  J.  487 ;  13  R.  I 


111 
11' 

Sl'i.' 


m 


m 


224 


Statute  Law. 


intoxicating  licpior,  ale  or  lager  beer,  or  to  any 
drunkard,  knowing  liiin  to  be  such,  or  to  any 
father,  mother,  husband,  wife  or  child,  after  notice 
from  either  father,  mother,  husband,  wife  (  child 
not  to  sell  to  the  other,  or  to  any  intoxicated  per- 
son. Unlicensed  selling  is  also  a  misdemeanor. 
No  liquors  are  to  be  sold,  nor  are  places  where 
they  are  sold  to  be  kept  open  between  midnight 
and  five  in  the  morning,  nor  on  any  election  day. 
Here  it  has  been  held  that  a  statute  making  the 
reputation  of  keeping  a  place  where  liquors  are 
illegally  sold,  where  clearly  established,  decisive 
evidence  that  liquors  are,  in  fact,  kept  there  for 
sale,  is  not  unconstitutional.  Of  course,  the  de- 
fendant may  show  the  reputation  is  unfounded.' 
In  Xew  York  State  the  licensing  system  is  in 
vogue  under  an  act  passed  in  1857,  and  amended 
from  time  to  time.  Licenses  are  granted  by  a 
commission  appointed  by  the  municipalities.  To 
obtain  a  license  to  sell  liquor  to  be  dnuik  on  the 
premises,  a  person  must  be  of  good  moral  char- 
acter. As  Park,  Ch.  J.,  says,  "  the  crime  of 
selling  intoxicating  liquors  is  peculiar.  Other 
crimes  need  concealment  ;  this  cannot  be  success- 
fully carried  on  in  secrecy.  The  occupation  re- 
quires the  broad  light  of  day.  A  liquor  establish- 
ment is  as  well  known  to  the  community  in  which 

'State  V.  Morgan,  40  Conn.  44;  State  v.  Thomas,  28  Alb. 
L.  J.489;  47Cont. 


Statute  Law. 


225 


it  exists,  as  a  grocery,  dry  goods,  nieclianical  or 
manufacturing  establislnneut  would  be.  Its 
customers  are  easily  distinguishable  from  others. 
They  can  bo  easily  recognized  at  a  distance.  They 
loiter  about  the  establishment  as  drones  about  a 
hive,  and  constitute  a  sign  tor  the  place  as  unmis- 
takable as  in  one  in  letters  over  the  door."  In 
New  York,  the  sale  to  Indians  and  apprentices  and 
minors  (without  1^  .0  consent  of  their  guardians), 
or  to  any  intoxicated  person,  is  forbidden.  So 
likewise,  the  selling  upon  Sundays  or  election 
days,  or  to  any  habitual  drunkard  after  being 
notified  not  to  do  so  A  license  may  be  revoked 
for  breaches  of  the  law;  and  a  person  selling 
to  any  one  to  whom  it  is  unlawful  to  sell  is  lia- 
ble for  all  damages  flowing  from  that  act.  Com- 
mon carrier,  continuing  to  employ  any  servant 
shown  to  h.i vo  been  intoxicated  while  on  active 
duty  in  any  work  where  negligence  would  en- 
danger lif'j,  limb  or  property,  are  liable  to  a  fine 
Being  drank  in  any  public  place  is  a  misdemeanor 
punishable  by  fine  and  imprisonment.  Debts  for 
spirituous  liquors  cannot  be  recovered.  To  the 
Civi'  Damage  Act  to  suppress  intemperance,  pau- 
perisii'  h  id  <;rime,  reference  has  already  been 
made,  as  ^vell  as  to  the  rights  and  responsibilities 
of  landlords  and  tenants. 

"New  Jersey,  also,  has  a  licensing  law ;  under 
it  permits  to  sell  vinous,  spirituous  and  other 
strong  drinks  are  issued  by  the  excise  comm 
15 


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I: 

■  i-     if  '.J 


1,* 


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ill 


1 


326 


Statute  Law. 


sioners.  The  provisions  of  this  act  forbidding 
the  sale  of  liquor  in  certain  eases  are  very  simi- 
lar to  those  of  the  N"ew  York  h'^'  Local  option 
laws  are  in  force,  in  parts  ot*  i  State,  under 
which  the  people  may  by  baiiot  determine 
whether  or  no  any  licence  shall  be  granted  in 
their  locality  to  sell  malt,  vinous,  spirituous  or 
intoxicating  liquors.  The  constitutionality  of 
this  law  was  strongly  contested,  but  the  Supreme 
Court  held  that  it  was  within  the  province  of  the 
Legislature  of  the  State  to  confer  upon  a  city  the 
right,  by  a  majority  of  its  inhabitants,  to  j^ass 
ordinances  for  the  regulation  or  suppression  of 
the  retail  trade  in  ardent  spirits.  Pennsylvania 
has  license  laws  very  similar  to  those  already 
mentioned. 

In  Kentucky,  under  the  act  to  regulate  the 
sale  of  spirituous  or  vinous  liquors,  the  voters  of 
any  district,  town  or  city  may  decide  wliether  or 
not  spirituous,  vinous  or  malt  liquors  shall  be  sold 
therein.  But  this  law  does  not  apply  to  manu- 
facturers or  wholesale  dealers,  nor  to  the  sale 
for  medicinui  purposes.  Ohio  has  a  prohuitory 
clause  in  its  Constitution ;  it  has  not,  however, 
stopped  liquor-selling  or  liquor-drinking.  There 
is,  also,  a  Civil  Damage  Act  to  provide  against 
the  evils  resulting  from  tlie  sale  of  intoxicating 
drinks.  North  Carolina  has,  since  1874,  had  an 
act  to  prohibit  the  sale  of  spirituous  liquors  in 
townships  where  the  people  so  determine.  Texap, 


Statute  Law. 


227 


in  1876,  passed  a  statute  to  prohibit  the  sale, 
exchange  or  gift  of  intoxicating  liquors  in  any 
county,  justices'  precinct,  city  or  town,  in  the 
State,  that  may  so  choose  ;  prescribing,  also,  the 
mode  of  voting,  and  affixing  a  punishment  for 
the  violation  of  the  law.  Arkansas  has  a  law 
providing  for  the  determination,  by  qualified 
electors,  whether  licenses  shall  be  granted  to  any 
person  to  keep  a  drinking-saloon  or  dram-shop. 

Iowa  possesses  a  prohibitory  law,  forbidding 
the  manufacture  or  sale  of  intoxicating  liquors, 
except  for  mechanical,  medicinal,  culinary  and 
sacrameital  purposes;  and  excepting  also  beer, 
cider  from  apples,  and  wine  from  grapes,  currants 
and  other  fruits,  grown  in  the  State ;  and,  as  to 
sale,  further  excepting  foreign  importations  of 
liquors  under  the  authority  of  the  laws  of  the 
United  States.  Keepers  of  hotels,  saloons,  eat- 
ing-houses, and  groceries  and  confectioners  are 
not  allowed  to  sell  intoxicating  liquors  under  any 
circumstances,  and  those  persons  who  are  allowed 
to  sell  for  the  purposes  mentioned  must  have 
licenses.  Michigan  has  a  "  liquor-tax  law,"  im- 
posing u  tax  upon  the  business  of  manufacturing, 
selling  or  keeping  for  sale  distilled  or  malt  liquors, 
or  mixed  liquors.  Illinois  and  "Wisconsin  have 
license  and  civil-damage  laws.  In  the  latter  State 
liquor  must  not  be  sold  or  given  away  to  spend- 
thrifts. In  Kansas,  until  very  lately,  there  was 
a  license  law,  and  the  petition  for  license  had  to 


i1 


iv 


ii 
'I 


i: 


22S 


Statute  Law. 


|: 


be  signed  by  a  majority  of  the  adult  residents  of 
the  ward  or  township  ;  now  a  very  stringent  pro- 
liibitory  law  has  been  passed.  In  Nebraska  li- 
censes are  issued  upon  the  petition  of  ten  free- 
holders, setting  forth  that  the  applicant  for  leave 
to  sell  strong  drink  is  of  rc^ipectable  character 
and  standing ;  and  the  fees  are  devoted  to  school 
purposes.  The  fee  is  $1,000.  (There  is  some 
dry  humor  about  legislators  in  that  State.)  Treat- 
ing is  forbidden. 

Minnesota  has  a  license  law  of  the  same 
general  character  as  those  mentioned,  but  with 
a  special  provision  forbidding  legalized  vend- 
f  -.  of  intoxicating  liquors  to  sell,  bargain,  fur- 
nish or  give  away  such  liquor  to  any  minor, 
pupil  or  student  in  any  institution  of  learn- 
ing, or  to  any  intemperate  person  or  habitual 
drunkard.  The  license  law  of  West  Virginia 
makes  it  unlawful  to  sell  inebriating  drinks  be- 
hind any  screen,  frosted  window  or  other  device 
designed  to  protect  the  seller  or  the  drinker  from 
public  observation ;  the  law  also  makes  sellers 
responsible  for  the  care  and  maintenance  of  those 
whose  intoxication  they  may  have  occasioned, 
and  provides  for  the  collection  of  damages  by  the 
families  and  friends  of  drunkards.  Missouri  and 
Mississippi  both  have  laws  permitting  this  traffic 
Tmder  certain  restrictions ;  a  majority  of  the 
voters  or  tax  payers  must  join  the  publican  in 
his  petition  for  leave  to  supply  those  to  whom 
the  poet  cries. 


Statutk  Law.  229 

Nose,  nose,  uose,  noso, 

And  who  gave  you  that  jolly  red  uoseV 

and  who  reply  —  beside  the  mark  — 

Liniment  and  ginger,  nutmegs  and  cloves, 
That  gave  me  jolly  red  nose, 

with  that  "  wet  dainiiatiou  "  whicli  really  washes 
out  the  true  color  of  so  many  manly  faces  ana 
drowns  so  many  souls. 

A  law  passed  in  California  making  it  a  misde- 
meanor to  employ  a  female,  or  for  a  female  to  be 
employed,  in  any  dance  house  or  where  li(|uors 
Are  sold  or  used,  is  unconstitutional ;  for  no  one — 
under  the  constitution — is  to  be  disqualified  by 
sex  from  entering  upon  any  lawful  business,  voca- 
tion or  profession.* 

"This,  then,  is  the  position  of  the  drink  ques- 
tion in  America.  The  contest  between  the  sober 
portion  of  the  community  on  the  one  hand,  and 
the  drink-sellers  and  their  depraved  customers  on 
the  other,  a  contest  in  whicluthe  State  very  prop- 
erly sides  with  the  cause  of  temperance,  has  suc- 
cessfully reached  a  stage  far  in  advance  of  that 
which  it  has  attained  in  Great  Britain,  and  the 
people  are  devoting  their  energies  and  their  inex- 
haustible resources  to  arrive  at  a  practical  solu- 
tion of  the  problem  which  has  hitherto  puzzled 
all  men  and  all  ages.''" 

*  Ex  parte  Maguire,  7  Pac.  C.  L.  J.  857. 
'  Samuelson,  History  of  Drink,  ch.  XIV. 


m 

•if! 


I 

I 
I 


INDEX. 


Adam  and  Eve,  page- 

eating  the  forbidden  fruit 1,      2 

Addicted  to  excessive  use  of  intoxicants 125 

Adulteration, 

an  ancient  practice 148,  149 

former  punishment  for .'  149 

inspection  of  liquors 150 

forbidden 150-153 

Alcohol, 

the  forbidden  fruit 3 

early  use  of 16 

Ale  (See  Beer), 

not  a  spirituous  liquor 69 

intoxicating 69,  71,  75 

known  to  the  ancients 70 

in  Elizabeth's  days 48 

Ale  conners  or  tasters 36,  149 

Ale-houses, 

intention  of 43 

regulation  of 44 

Alewives 45 

Beer  (See  Ale), 

what  it  is 66,    68 

is  it  intoxicating 69,  71,    75 

early  use  of , 6-18 

used  to  catch  monkeys 14 

Beer-house, 

whatitis 66,    68 


232 


Index. 


Brewing,                                                                           page. 
common  brewers 44^ 

Britons,  Ancient, 

drinks  of 13 

Buddhists, 

laws  of,  as  to  intoxicants 24,    25 

Canada, 

Civil  Damage  Act  in 208 

Temperance  acts  in 216,  217 

laws  as  to  taverns  and  licenses 217-219 

California, 

women  selling  liquor  in "229 

Carriers, 

responsible  for  acts  of  drunken  passengers. .   139,  140 
responsibility  to  drunkards  of 140 

Cellar, 

a  bouse ^ 66 

Children, 

taken  from  drunken  father 155 

China, 

early  use  of  wine  in 4 

use  of,  and  laws  as  to,  intoxicants 27 

Cider, 

not  a  vinous  liquor 74 

Civil  Damage  Acts 184-208 

redress  injuries  from  liquor  traffic 184,  185,  208 

unauthorized  sales 186 

authorized  traffic 186 

who  has  right  of  action 186,  188,  204 

extent  of  liability 187,  198-200 

who  are  liable 187-189,  208 

different  sellers,  liability  of 190,  204 

liability  of  landlord 187,  192 

injury  to  person 193,  194 

to  property 194 

to  means  of  support 195-:'  97 

death  ensuing 186,  197 

exemplary  damages 198-200 


Index. 


233 


Oivil  Damage  Acts  —  Continued.  page. 

what  damages  recoverable 200,  205 

mental  snflFering 194,  199 

unforeseen  events 201-203 

wife  supplying  liquor 20(> 

injury  to  party  supplying  liquor 208 

taking  care  of  drunkard 207 

Oommon  drunkard, 

who  is 60 

Connecticut, 

Civil  Damage  Acts 18^ 

laws  as  to  liquor  traffic 151,  223 

Consent, 

requisites  to 85 

obtained  by  fraud 85 

Oontractj 

definition  of 84 

consent  necessary 84,  85 

of  non  compos 85,  86 

drunkenness  avoids  or  makes  avoidable.. . .  87,  96-100 

express  and  implied 95,  96 

necessary ^ 

executed 98 

ratification  of 190 

Crimes 157-183 

drunkenness  an  excuse  by  Canon  law 157 

an  extenuation  in  Germany 157-159 

French  and  English  rule 158-161 

Koniaii  doctrine •  33,  34 

involuntary  drunkenness  an  excuse 164-167 

delirium  tremens ^''^}~^J.^ 

premeditated .•  •  l'''5i  1  '6 

question  of  intention 178-183 

provocation    180,  1 81 

confession ......  18o 

Damages.    {See  Civil  Damage  Acts.) 

Death  from  drink, 

liability  of  seller  for 186,  197 

of  husband 204 

Declaration  not  a  warranty 124 


i 


234  Index. 

PAGF. 

Deed 101-106 

of  drunkard  is  voidable 101 

to  tavern-keeper 102-103 

to  Bon 104 

to  wife 105 

Delirium  tremens, 

definition 57 

dying  while  in 119 

crime  committed  while  in 171-175 

Dipsomania, 

defined 56 

Distillation, 

discovery 16 

in  England 16,  48-61 

in  France 19,     21 

Dram 73 

Drunkard, 

when  relieved  from  contract 89-94 

theories  as  to  liability 96-100 

contracts  of,  voidable 97-100 

ratification  of  contract 100 

deeds  of 101-106 

wills  of 107-116 

negligence  of 186-137 

rights  of 137 

injuries  to 188-141 

ejecting  from  cars 189-140 

torts  of 153 

confession  by 183 

crimesof..     157-183 

taking  care  of 207 

Drunk, 

in  public  place 67,  68 

Drunkenness, 

definition  of 52,  117 

svmptoms  and  progress 52,    54 

different  kinds 55,160 

is  insanity 62,  107,  115 

avoiding  contracts  for 87-94 

excessive , ...  90-92 

when  a  defence  to  contract 94 


Index. 


235 


Drunkenness  — Continued.  page. 

invalidating  will 108-112 

no  excuse  for  want  of  care 130 

excuse  for  crime  by  Canon  law 157 

excuse  in  Qerniany 157,  168,  177 

when  no  excuse 101-164 

involuntary 104-107 

crime  during  complete 178,  179 

considered  iu  criminals 175-183 

by  his  own  hand 129,  130 

Egyptians, 

laws  as  to  intoxicants 28,  29 

drinks  of 4,  70 

used  beer 8,  10 

England, 

introduction  of  wine 

beer  introduced 12 

water  not  drunk  in 21,    22 

ecclesiastical  laws  in, 37-39 

laws  as  to  ale,  etc 40 

taverns 211-214 

intemperance  in 42,  48,  215 

gin  drinking 48-51 

Equity, 

interfering  with  drunkards'  contracts 90-92 

will  sometimes  sustain 93 

Excessive  drunkenness, 

effect  on  contracts 90,    94 

Excise  duties ^^t    ^^ 

Fermented  liquors, 

among  uncivilized  nations •  •  •  •  14-20 

France, 

intoxication  no  excuse  in 161 

Qermany, 

introduction  of  wine 6 

use  of  beer ^ 

laws  as  to  intoxicants •  •  ^ 

intoxication  as  excuse  for  crime 157,  178 


I 


230 


Index. 


Oin,  FAas. 

growth  of  drinking,  in  England 48,    51 

OldTom 76 

Qingex  beer 72 

Gothenburg  system 209-211 

Greeks, 

use  of  wine  by 5 

laws  as  to  use  of  intoxicaute 29 

Habits  of  intemperance 122-128 

Habitual  drunkard. .   ..   €0-62 

Homer, 

references  to  wine  in • 4 

Hops, 

use  of 41 

lUinois, 

laws  of,  as  to  liquor  iraffic 237 

Civil  Damage  Acts 187,  192 

Indiana, 

Civil  Damage  Acts 185,  201,  203 

Innkeeper  drunk  ou  his  premises 141 

Insanity  caused  by  drunkenness 169-174 

Insurance 117-131 

drunkard,  not  a  good  life 117 

death  when  intoxicated  117,  118 

proximate  cause  of  death , 118 

application,  answers  in 121,  129 

dying  by  reason  of  intemperance. ... 118-120 

habits  of  applicant 120,  126 

cancellation  of  policy 130 

Intemperate  habits 60,  123 

acquired  after  insurance 126 

Intemperate  man 62 

Intoxicating  liquor, 

defined 71,  204 

different  kinds  of 1-22 

of  unci V  ilized  nations 14r-22 


Index.  237 

I'AGE. 

Involuntary  dru  .kenness 164-167 

Iowa, 

Civil  Damage  Acts 186,  IH 

laws  ag  to  liquor  traffic '-'''^' 

Ireland, 

ecclesiastical  laws  in '^9 

laws  as  to  taverns • ^^^ 

Jews, 

use  of  intoxicants  by 25 

different  names  for  intoxicants ^ 

Jokers,  . 

responsible  for  acts 1'*^ 

question  of  intoxicant  for Jj'     1^ 

drinking 143-  |8 

Englisli  rule  as  to j^J* 

treating ^*' 

Kentucky, 

laws  as  to  liquor  traffic '*'*" 

references  to  intoxicants    2b,    37 

_        .  .   ...     18 

Koumiss 

Kvass " 

Lager  bier, 

a  malt  and  intoxicating  liquor «  a.     '* 

Lake-dwellers, 

had  the  vine 

Lamb-wine 

Licenses, 

when  first  granted 

Mahommedans, 

use  of  intoxicants  by ^6, 

Maine, 

laws  as  to  liquor  traffic 230,  3*.l 


238  Index. 

Malt  liquor,                                                                      PAGE, 
what  is 75 

Mania  a  potu, 

defined 57 

Marriage 131-136 

.  consent  necessary 131 

the  Fleet  marriages 131 

of  insane  void 133 

of  drunkard,  when  void 132-134 

ratification 133 

Massachusetts, 

Civil  Damage  Acts 186 

laws  as  to  liquor  traffic 151,  222 

Malting, 

early  knowledge  of 11,     13 

Means  of  support, 

damages  for  injury  to. 195-197,  205 

Medicine  or  drink 73 

Mexicans, 

laws  as  to  intoxicants 85 

Michigan, 

laws  as  to  liquor  traffic 227 

(3ivil  Damage  Acts 186,  192,  200 

Minor, 

who  is  a 63-65 

Minnesota, 

laws  as  to  liquor  traffic 228 

Molasses  beer 72 

Mississippi, 

laws  as  to  liquor  traffic 228 

Missouri, 

laws  as  to  liquor  traffic. . . 228 

Nebraska, 

law  as  to  liquor  traffic , 228 

Negligence, 

of  drunkard 186 


Index.  239 

New  Hampshire,  page. 

laws  as  to  liquor  trafHc 221,  223 

Civil  Damage  Acts 186 

New  Jersey, 

laws  as  to  liquor  traffic 151 

New  York, 

Civil  Damage  Acts 186,  192,  197 

laws  as  to  liquor  traffic 151,  224-226 

Non  compos, 

who  is 86 

North  Carolina, 

laws  as  to  liquor  traffic 226 

Ohio,  , 

laws  as  to  liquor  traffic 236 

Civil  Damage  Acts    186,  193 

Persians, 

laws  as  to  intoxicants 25,    26 

Person,  injury  to, 

damages  for 193,  194 

mere  words  not  sufficient 194 

what  is 200 

Pop , .■    74 

Property,  injury  to, 

for  what,  damages  given 194,  195 

Provocation  while  dnmk 179,  180 

Proximate  cause  of  death 118 

Public  place, 

what  is  a 67-69 

Punishment  of  drunkard, 

under  James  I 43 

imprisonment 141 

in  ^ti^ xico , , 35 

Retail, 

whatis 78,    80 

Rhode  Island, 

Civil  Damage  Act 186 

law  as  to  liquor  traffic 323 


240 


Index. 


Romans,  page. 

use  of  wine  by 5,      6 

laws  as  to  use  of  intoxicants 30-34 

under  30  forbidden  wine 33 

drunkenness  no  excuse  among 33,    34 

Sabbath  night, 

defined 78 

Sake 19 

Saloon, 

defined 65 

Saloon-keeper, 

defined 63 

Scotland, 

laws  as  to  intoxicating  liquors 36,  214 

Society  Islands, 

laws  as  to  intoxicating  liquors 34,    ?5 

Specific  performance, 

of  drunkards' contracts.     106 

Spirits, 

what  are 76-78 

Spising  and  Spruce  beer 72 

Strong  ixraters , 47 

Sunday  closing 78,     79 

Sweden, 

laws  as  to  liquor  traffic 209-311 

Tavem-keeper, 

dealing  with  drunkards 102,  103 

Texas, 

laws  as  to  liquor  traffic 226,  227 

Torts  of  drunkard 153    154 

Unlawful  selling  of  liquor 81,     82 

Vermont, 

Civil  Damage  Acts 186 

laws  as  to  liquor  traffic ...  220,  222 


Index. 


241 


Whisky  seller,  pagk. 
need  not  be  teetotaler , 82 

Wills , 107-116 

when  void  for  drunkenness 107-118 

of  habitual  drunkards 108,  109 

capacity,  not  propriety ,,„,  111,113 

burden  of  proof  of  incapacity , . .  li:}-115 

obtained  by  artifice , . , 116 

execution  of 110 

Wine, 

an  intoxicant 73 

early  knowledge  of ,, 3-6 

forbidden  to  Roman  women 80-83 

Women, 

forbidden  to  use  wine 80-33 

16 


1*1 


